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Home My WebLink About25-Development Services (2) CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION File: 15.06-164 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 A venue for a cellular tower disguised as a functional fire hose rack (APN 0285-191- 05). From: Valerie C. Ross, Director Dept: Development Services Date: May 26, 2009 MCC Date: June 1,2009 Synopsis of Previous Council Action: 5/7/2008 - Resolution No. 2007-145 was adopted approving an agreement with ATS Communications for development and implementation of a Wireless Master Plan. Item was continued to the May 18,2009 MCC agenda. Item was continued to the June 1,2009 MCC agenda. 4/20/2009 5/18/2009 Recommended Motion: 1. Adopted Resolution. AND 2. Authorize the Director of Finance to amend the 2008/09 adopted budget by increasing revenue account number 001-000-4523 by $6,100 and General Government expenditure account number 001-182-5505 by $1,000. r~c.~ Valerie C. Ross Contact Person: Ryan Sandoval Phone: 5226 Supporting data attached: Staff Report, Map, Reso, & Lease Ward(s): 4 FUNDING REQUIREMENTS: Amount: None i4v/~ /III tf-2c.-()Q It 2~ 6. 'I-DC} Acct. Description: N/A J2 Finance: Council "s: n?N/IUJLr;#2' 5-1,?-{)q ~#200q-/~_ Source: (Ace!. No.) N/A Agenda Item No. (~1;i~/::=; /f;~r-OJ I t.t;' (,-1- 0" 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: In May of 2007, the Mayor and Common Council approved an agreement with ATS Communications for the development and implementation of a Wireless Master Plan. The plan will identify current wireless facilities located within the city (on public and private land) available for location of cell towers, and future needs of wireless communication. A TS has the exclusive right to market all City owned sites to potential wireless providers and to facilitate the placement of wireless communication cell towers and facilities. A TS submitted a draft Wireless Master Plan Study in May of 2008 and requested input from City staff. A TS expects to have the study finalized by the end of this year and it will be brought forward for Council approval. Under the terms of the agreement, ATS receives 25% of the revenue from each new lease. New leases are described as those that are approved by the Mayor and Common Council during the term of the agreement for any portion of a City property between the City and a third party. The initial term of the agreement is five years and will terminate on May 31, 2012 if not renewed. ATS will continue to collect 25% of the revenue from the lease agreements until such time that they expire or revenue ceases. A TS has submitted the second lease agreement under the terms of their agreement. Los Angeles SMSA Limited Partnership, commonly known as Verizon Wireless, submitted a proposal to lease 987 square feet of property at Fire Station No. 228 located on the Northwest comer of Highland Avenue and Orange Avenue, at 3398 Highland Avenue (APN 0285-191-05), for placement of a 75' cell tower disguised as a functional fire hose rack that will allow the Fire Department to dry their fire hoses and/or equipment. Los Angeles SMSA Limited Partnership will be responsible for any utilities consumed by their equipment. The Fire Department has reviewed the proposed lease and agrees to the design ofthe drying tower. The agreement provides a five (5) year term with the option of three (3) successive five (5) year renewal periods. The initial monthly rent is $2,000.00 per month with a 4% increase each annual anniversary of the commencement date. The term of the lease arrangement begins upon execution of the lease agreement and lease payments will begin 30 days thereafter. Construction of the cell tower at Fire Station No. 228 is expected to start in mid 2009. Los Angeles SMSA Limited Partnership has received land use approval and filed an application for a building permit. 2 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). Per the request of Councilwoman Estrada, additional language has been added to the lease agreement pertaining to the risk to public safety or health, and can be found in Section 21 of the Lease. Other minor changes have also been made to the lease, which include the commencement date of the lease, insurance notification requirements, and adding the newly appointed City Manager's name to the title block. All changes have been negotiated and approved by the City Attorney's office and the Verizon Wireless attorney. FINANCIAL IMPACT: The lease payments will begin 30 days after the execution of the Lease by both parties. The projected gross revenue for 2008/09 is anticipated to be $4,000 (2 months x $2,000). A TS will receive 25% of the revenue as compensation, which is $1,000. Additionally, the agreement requires Verizon to pay to the City a document preparation fee of $2,100, which is not shared with A TS. Therefore the total gross revenue for 2008/09 is anticipated to be $6,100. The total net revenue over the five (5) year period is $97,493.80. RECOMMENDATION: 1. Adopt Resolution; and 2. Authorize the Director of Finance to amend the 2008/09 adopted budget by increasing revenue account number 001-000-4523 by $6,100 and General Government expenditure account number 001-182-5505 by $1,000. ATTACHMENTS: Vicinity Map Site Plan Resolution 3 Location of Proposed Lease Area /%%~~ >/I~ Highland Ave. Base Line St. 5th St. Rialto Ave. Orange how Rd. ,; ~ . o ~ 11. ~ i= MillSt. "' . j( VICINITY MAP :J . CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT REAL PROPERTY SECTION Proposed Lease Agreement with Los Angeles SMSA Limited Partnership (Verizon Wireless), for a portion of City owned property located at 3398 Highland Avenue (Fire Station No. 228). ~ indicates un~incorporated areas within City's ~ Sphere of Influence Created by: Ryan Sandoval Date: 03/24/09 ~ g ~ r 1, 'Iii l!i! I;ij ,1 " "0 " '"-~ !'l :J1;iJ1 I@~ u ~u ,. . <'e' 1'0,., '0 , I ~ Z~::i~ ~ ~ ~:; "i' .." e" "I. ~ -.;' ,,-.."'~ H~~ ~~",t b I;:! 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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP, 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 AVENUE FOR A CELLULAR TOWER DISGUISED AS A FUNCTIONAL FIRE HOSE RACK (APN 0285-191-05). BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized and directed to execute on behalf of the City a Lease Agreement between the City of San Bernardino and Los Angeles SMSA Limited Partnership, dba Verizon Wireless for the lease of 987 square feet of City owned property at Fire Station No. 228 located on the northwest comer of Highland Avenue and Orange Avenue, also known as 3398 Highland Avenue (APN 0285-191-05), a copy of which is attached hereto, marked as Exhibit '"]", and incorporated herein by this reference. SECTION 2. The authorization to execute the above-referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. /II /II 04113/09 (!0JNli .....e.f 40Wf Lf-JD-O~ -4tJ\ 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO 2 AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP, DBA VERIZOI'O 3 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 AVENUE FOR A 4 CELLULAR TOWER DISGUISED AS A FUNCTIONAL FIRE HOSE RACK (API'O 0285-191-05). 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting 7 thereot: held on the . 20_, by the following vote. day of to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA BAXTER BRINKER SHORETT KELLEY JOHNSON MCCAMMACK RACHEL G. CLARK. City Clerk The foregoing resolution is hereby approved this day of .2009. PATRICK J. MORRIS. Mayor City of San Bernardino Approved as to Form: 1.P~ ES F. PENMAN, City Attorney 04!l3109 2 Site: PATTO!\; 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: 04 1 Y1009 File No.: 15.06-164 I. 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 I T) 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 "8" 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 umeasonably 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 the date both Lessor and Lessee have executed this Lease ("Commencement Date"). 04113/2009 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 Pavments: (a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and 00/1 00 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-Four Thousand and 00/100 Dollars ($24,000.00) "Rent", payable in equal monthly installments commencing upon the Commencement Date C'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 "0" 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. 04. 13.2009 3 File '10.: 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. 04 132009 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. 0413 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-I", 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 04 I) ~009 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 payor 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. 04. 13/2009 " , 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-lVII, 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; (I) Commercial General Liability with limits of Fiye Million Dollars ($5,000,000.00) per 0" 13 2009 8 FileNo.: 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 modification or cancellation. (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) (collectively "Losses") to the extent arising from or related to the indemnifying party's 04/1 32009 9 File No.: 15.06-164 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 II 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 aily 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 04'LU009 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. Assi\!nment and Sublettin\!: (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 atIiliate 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 04.'13 '2009 II 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 an}1hing 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 there over, 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 0"' 13/2009 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: (I) 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 "'laterial 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 04. 13 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 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 II 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 04 13 2009 14 iile \0..15.06-164 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. 04 13/2009 15 File No.: 15.06-164 18. Casualtv: 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 Lcssec's option. to be exercised in writing within fifteen (15) days after Lessor shall have given Lessce written notice of such taking (or in the absence of such notice. within fifteen (IS) days after the 04/132009 16 File~o.: 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 04' 13.'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 Development Services Department Real Property Section 300 N 0 Street San Bernardino, CA 92410 Los Angeles SMSA Limited Partnership, dba Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate With a copv to: A TS 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 04 132009 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 afTect Lessee's interest in the Premises created by this Lease. Ul 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. (I) 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. 04. 13ic009 19 File No.: 15.06-164 (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. (0) Lessor covenants that Lessee. on paymg 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. III III 04.13 1009 20 File No.: 15.06-164 LEASE BETWEEN CITY OF SAN BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP, DBA VERlZON 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: MARK WEINBERG, Interim City Manager Date: ATTEST: RACHEL CLARK City Clerk Approved as to form: LESSEE: LOS ANGELES SMSA PARTNERSHIP, a California limited partnership, dba Verizon Wireless By: j\irTouch Cellular. its General Partner By: W AL TER L. JONES, JR., West Area Vice President - Network Date: 0413 2009 21 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 Intersectlon 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 00. 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 63" 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 011, gas and other minerai 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. 04' 13:2009 22 File No.: 15.06-164 EXHIBIT "8" -Plat showing Leased Area & Access Easement- -Plat showing Utility Installation Area- 04/132009 23 File No.: 15.06-164 r;Mm~~"- 1 ."~ IT ~ ;ij ->.. >-- ! _ \ ..~... ~: a. =9" o~.. z "t 0 ~ ~ "1 ! 0 "' <" x I t,-... ..::! ~ ':! u.. \ I!w ii n, 1 i jf ,.; 0 .1 5 0 ~ ., ~ ~ ! ~ ~ ~ 0. ,'t.=~'" ,:1 :,' .. 1 .. ~ ~ 'I ,... ~ d" :d ::!;. ,~ '.' ~~I .~~~ '~:.iw ~!; hi! jIg H:H ~!;- ~i32~ ~p~ I.~,~ i: llil !',Il J "iP' - - - - ---'-==.- -1'- ---.- - -r-S ;i-'~.~~:'; ~'":~ - - - ~ - - - + - - - - -- ~: ~'/ \ ~ ~ i;ii " !H i ""." 1~ ~ j di iplli : . ,!dl,l!!!. :B~!'!'i11Iji'l "Ji,,:d. L!l .:!~! f I 'Q I I 21 ---it ;1 " .' ,,~ 1 . , , ! , .,1 ., ~~ ~ : I" ;. 1 " ,Iii )/ , i! " :~ 'j~~ ~ ~'! _~~~s I, I ! i; n:~ !; ~:! :~L ,I' . 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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. 04 I] 2009 24 Fjle No.: 15.06-164 "?"",. ~~ ~! : ~ ,! 1~ i'! ~ ! ~! ~ ': : ~ ." ~~ :I~ ~~ ., ;a :! i ~ . I i ~l~ I f~ ~i ?~ '! ~l " " ".., ~~ ; " , , , ; . ;, '~: , 'i . j ,; ;~ ~ ~ j ";; ;1 ;~ , ,~;; " i: i'o " , Ii ,~7 . j'. i;i " . .; , ,C' ii , , " ~ < " ?;: " u " '. H:l n ~ ~ ! I n lW@f ""..... ~-----, ~ o 3 :oj ~ < ~ < " ~. ! ~. iC" ~i lQu~ z '3 ~ c z < ~ c z ~ 2. z :l ~ ~~~ ;",-1 ~~ ; ~ ~ ",- . . !~; . "'" . ~. l:i~ , . 1~ :j! , ,..~ , ~ ' " , . , i;~ ; ,,~. , ~i ! <:~ 1 .. -=/ i " :;.! .- , ;5 - h , ,- ", , 'I j 'i' i, :;~1! : ~ , . ~ i , (1 i , :.l j , :~ -it.: ;~ " , :' ~ , , " ,- .'" , J ~ " . i ~j " ~;; : " ~ ~ . ;, .! 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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 ofJOO North "0" 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 the date both Lessor and Lessee 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. a municipal corporation LOS ANGELES SMSA Ll~llTED PARThERSHIP, a California limited partnership dba Verizon Wireless By: AirTouch Cellular. its General Partner By: MARK WEINBERG, Interim City :Vlanager WALTER L. JONES, JR, West Area Vice President - Network Date: Date: EXHIBIT "A" Legal Description All that certain real property situated In the County of San Bernardino, State of California, descrlbed 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 63018' 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 011, gas and other minerai 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. RECORDrNG REQUESTED BY AND WHEN RECORDED RETURN TO CITY OF SAN BERNARDINO CITY CLERK 300 N. "D" STREET SAN BERNARDINO. CA 92418 APN: 0285- I 9 I -05 FEE EXEMPT PURSUANT TO GOY. 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 "0" 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"). I. 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 A venue, Highland, CA, legally described on Exhibit "A" attached hereto and made a part hereof. All of the foregoing is set forth in the Lease. o The initial lease term will be five (5) years ("Initial Term") commencing the date both Lessor and Lessee 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 modiry, 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 ofthe 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. a municipal corporation LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership dba Verizon Wireless By: AirTouch Cellular. its General Partner By: MARK WEINBERG, Interim City Manager WALTER L. JONES. JR., West Area Yice President - Network Date: Date: 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 011, 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP, 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 A VENUE FOR A CELLULAR TOWER DISGUISED AS A FUNCTIONAL FIRE HOSE RACK (APN 0285-191-05). BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized and directed to execute on behalf of the City a Lease Agreement between the City of San Bernardino and Los Angeles SMSA Limited Partnership, dba Verizon Wireless for the lease of 987 square feet of City owned property at Fire Station No. 228 located on the northwest corner of Highland Avenue and Orange Avenue, also known as 3398 Highland Avenue (APN 0285-191-05), a copy of which is attached hereto, marked as Exhibit "I", and incorporated herein by this reference. SECTION 2. The authorization to execute the above-referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. /1/ /1/ t - /-()~ dJ.J5 OS/27/09 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO 2 AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP, DBA VERIZON 3 WIRELESS FOR THE LEASE OF NINE HUNDRED SEVENTY (970) SQUARE FEET OF CITY OWNED PROPERTY AT FIRE STATION NO. 228 LOCATED AT 3398 HIGHLAND AVENUE FOR A 4 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 Common Council of the City of San Bernardino at a meeting 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 , 20_, by the following vote, thereof, held on the day of to wit: Council Members: NAYS ABSTAIN ABSENT AYES ESTRADA BAXTER BRINKER SHORETT KELLEY JOHNSON MCCAMMACK RACHEL G. CLARK, City Clerk The foregoing resolution is hereby approved this day of ,2009. PATRICK J. MORRIS, Mayor City of San Bernardino Approved as to Form: OS/27/09 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 govemmental 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: OS/26/2009 File No.: 15.06-164 I. 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 IT) 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 ofthis 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"). OS/26/2009 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 Pavments: (a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and 00/1 00 Dollars ($2, I 00.00) 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, I 00.00) for work performed. (b) Upon the Commencement Date, Lessee shall pay Lessor as rent, the annual sum of Twenty-Four Thousand and 001I00 Dollars ($24,000.00) "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. OS/26/2009 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. OS/26/2009 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. OS/26/2009 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-l", 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 05/26/2009 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 teleo board, as more particularly described and depicted on Exhibit "8". 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 payor 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. OS/26/2009 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-NIl, 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; (I) Commercial General Liability with limits of Five Million Dollars ($5,000,000.00) per OS/26/2009 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) OS/26/2009 9 File No.: 15.06-164 (collectively "Losses") to the extent ansmg 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 II 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/Possessorv 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 OS/26/2009 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 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. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under OS/26/2009 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 other party, which default is not cured within sixty (60) days of receipt of written notice of OS/26/2009 12 File No.: 15.06-164 default, except that this Lease shall not be tenninated 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, penn it 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 detennines that the Premises are not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference. In the event that Lessee tenninates this Lease prior to the expiration of the Initial T enn pursuant to the tenns 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 OS/26/2009 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 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 II above, Lessor and Lessee shall each indemnity, 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 ofthe 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 OS/26/2009 14 File No.: 15.06-164 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 none interference rules shall not be deemed interference. OS/26/2009 15 File No.: 15.06-164 18. Casualtv: 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 OS/26/2009 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 OS/26/2009 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 Development Services Department Real Property Section 300 N D Street San Bernardino, CA 92410 Los Angeles SMSA Limited Partnership, dba Verizon Wireless 180 Washington Valley Road Bedrninster, New Jersey 07921 Attn: Network Real Estate With a copv to: A TS 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. (t) 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 OS/26/2009 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. G) 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. (I) 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. OS/26/2009 19 File No.: 15.06-164 (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. (0) Lessor covenants that Lessee, on paymg 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 Safetv 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. III III OS/26/2009 20 File No.: 15.06-164 LEASE BETWEEN CITY OF SAN BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP, DBA VERlZON 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: LESSEE: LOS ANGELES SMSA PARTNERSHIP, a California limited partnership, dba Verizon Wireless By: AirTouch Cellular, its General Partner By: W ALTER 1. JONES, JR., Area Vice President - Network Date: OS/26/2009 21 File No.: 15.06-164 Exhibit "A" Legal Description of Property All that certllln real property situated II' the County of San Bernardino, State of California, descrlbed as follows: Real property In the City of San Bernardino, County of San Bernardino, State of California, descrlbed 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 Intersectlon 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 00" 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 63" 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 011, gas and other minerai 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. OS/26/2009 22 File No.: 15.06-164 EXHIBIT "B" -Plat showing Leased Area & Access Easement- -Plat showing Utility Installation Area- 05/26/2009 23 File No.: 15.06-164 n ,. /I ~ I~ ~~ ~ ~ ~<! i ~ " I ,! I!' Ii !II , ,;lI,I!!! 'i - , !" 'II ~ 0 0\, I"' I" ,,- !' ., 3~~dblf alE fila 8 'II i I I I ~ ,. , I II i I ,I , , ~i! ~~X~ I~~ i ?i~i ~ I' "c" ;'1', , ., Ze ~ ",Zi~ I~":~z :,~;~.~; ~~: <<<>~i 8~~; I~~ ~!'i:; ;~= ~,!:.;: l~~;' ~1l'1l'~ ~i~~ !l:' i:~~ T! ,~;!; I'! ,. l'i~-~llii_"'~""c-T---_--_f;!'______ ----------r=i--- . . "di l.J3l:IJ.S30N'f'1lO ~.. , ~ 'I : ,. Ih ,,~ ~ . 2 & h [ .!,'. . I fjf! ~ '" I ::c %-~ ~f'c'~'-=-u- ! II if. l I,: I, ' tl~ I " ~ 1 1 I I i~ !~ !i Jflljr\ ji! ---1,;' , (' 1,j: I: ill ~ ~~i Ht.:] 1 ~ ,h - ~ Ii ;'1 ''"T' -K ! ,! 'I: II , :1 li!;J!! 01- I, 11 !I i ili,:!1 > _ .~.,' 'j'! ~,. ~~ (; I I I f ~ c: !e 31' I, ':1 :\"'~~I'" '! ,;; 0 " , I l!! I I ~ ~ j~;" , ,( -15--'\ !. Il'l ' i, I '--t']'. \ II ,m r ~!i :' 'I I Jg I ~~2 I:. 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'J. 0 1_ I i D-mr-s.:+----r---, LJ~Bh. ...L. I jli ~ "--" l!i l--l:,~"l;l I I iF I >~ iJl1trl----irfU.' Ii! . irf=!J !I jl iI,~! ~ I - ,. ..~~! ~! ,t-, j1 11- II ~! 't- ':; I' - ., ij~ ~~I it. ,;; % ,;; . ~ , i u ~ ~, ~" ~-, !I( .' I , 'f hi o ~ f ~ " ... z :J ~ z ~ , '" in Ilil ~ '. '11 ! i" Iii u ~ ~V1 ! " o-'::;~ ~ C\I ;~ ~~wo ~ !S ~~~~ otcIciVi~ ~ ~~~~ Ii w"-- ~ l?~@~ ! i ~o i " . I! ~ Hl!/ON - ~ ~ ~ i ~: . ' I::g . "I ,- " 'f~ !,' 11' iil " . ! 1,1 III " z Ih ~ a 1~1 .. 0 j'x ~ liS .. I.. ~ 0 "- ,N II ~ g ~ 01 z < .. . ! "'!i I '. 'j' Ill!'!!' Ill'! "'ilii!I!II~;! I' I II "II I" Ill, 0 ",1""1"1 :llii !!ji;I!I!li! 'll'l ; 'ill,;",1 11 1 ill! Iii! ii, II l!l o z "- l:i ~ /: :J ~ => 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. OS/26/2009 24 File No.: 15.06-164 --~... ~ i , ___--.1.. , , 'I " I 2,1 ~(J--i n r.... ~ < ~ r:: z G " i 011 r,.11I I" . II ! I ~ ~ ; a ~ " ~., ill i j 'I "1'1111 Ld ~ n BBB ! ~ ;: " ,; " ~ I i : II : J ': I j i! Iii III 0 i' " II II ,Ii I --~'----"------------:ijO--:Sl:-.~;----'<------ - -11. ~,,~ '.~-. " I @L...,,\ /" y ---~.: ~ il.l/~r, ) .r",,-::, -, j/~ ~<)~j~i;'\" i I 'v_~~,,~__ ~-~-- , I Ir~ II I Ii .~ I,ll r ; ~ i. i ~ : 0 : i II z , ' , w --~ ~ j " ' "j i ; ~: I ~ < :"'11'; ii' "!i'lii w ~M 2 13 i ~, I :. ;. ~ i":, i i ~ ~ " l~rTl z 1 < "- r ~ i j j i! ~ ; !! ~ I i~i -- :':111111 0 z , ~;'~O ~~ < , ~~~ ~ , ;:-~5a ~~ ,.. ,~ ~ I '" , ~ 0 , di~ et z ;;It~ ~~ , i! ~ "'l ~~ 111 z ,! ~''':: ;= ,- ;;%~ -- j ~ z ;: " ,. :5 ;~ ~!~." 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Ag ;~ f~ ~ ~ ~~ ~~~ i ~~ Ioi ~~ ~~ ~- l' ~! ~i ~H, 1 !; ~;i Vl -;.I!'! ,.!, 11'1" "' ~- 2 3 ~ ~j j: ;r;:! ~ . f ~~ ~ ~~ ~I~ g~ ~ jf J ~!i: ~i ~ i; z ~~ ~ !!~ ~ Sf ~t ~~~- r !~ ~:I ~ 1/11,: Ij ! l! 1111'1'! Jill~: ~ ., !~"~~'''-''I~~~' ~~ ~I it ~: ! i~ Ii! 8! ~ ~i ~ d ,b; II!>!' llt!L , 1-- ll,!l ~ "' ~~ ~ 15 o ~ u 0: " w ~ ~ 15 o ~ '-' Be '" v [ .~ ~~~; ~ ~C~ . " i , t- ,1- SI .1 ~ '~l <:::r. i -, . · !~~;;~ ~~ i~_ i i L_! I 1.7::, i , __. f Ki'--=--1 ii.LL; i Itd: ---...1_-,,-- ~ ~ '0 ~z , l . 5 g, i ~ ~: , 1 ! I ! ii i i '1111 ! , 'I' I ! iid' 1J ~ i 11'1 ---+fI , z :5 ~ z o o ~ o Be '" i , i !I 'I i -I, !II ~h ~~;~:: b s~~~ ~ L.tl i5g'~~~ ~ ~" -- ::;: 0 ,",~~g~ C ~ ~:~;; ~ ~ ~!~h ;~ ~, 3 ~ "'... "u 0~o..J \o'l::;:~ ~tJVo} :s~ ~ ~ . , . I " : ~ ~ .2. . , I I ~ I Cj RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: EXHIBIT "D" Memorandum of Lease CITY OF SAN BERNARDINO CITY CLERK 300 N. "0" STREET SAN BERNARDINO, CA 92418 APN: 0285- I 91-05 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 of300 North "0" 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 the date both Lessor and Lessee 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, a municipal corporation LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership dba Verizon Wireless By: EXHIBIT COpy CHARLES E. McNELLY, City Manager By: AirTouch Cellular. its General Partner Date: EXHIBIT COpy W ALTER 1. JONES, JR., Area Vice President - Network Date: 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 Intersectlon 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 minerai 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. RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: CITY OF SAN BERNARDINO CITy CLERK 300 N. "D" STREET SAN BERNARDINO. CA 924 I 8 APN: 0285-191_05 FEE EXEMPT PURSUANT TO GOV. CODE SECTION 27383 MEMORANDUM OF LEASE ,,, W f",o day "" "" ~' 117;ESS WHEREOF, "'0 -" h,., ""~"''''' "'" Momo",",,,, of Lo... & 0 Irst abOve WrItten. /, 1_ Md L_ ~I.""" i," , -" L<.., ("L"""" ~ fu, d,y of h <imp"""",,"" 2009, fm fu. p_. o"_'f"" 0".1.'" Md "'"or'I.,g . ~""";""fo.. f.dlf" "d ;;:;. CA, I.",,"y "fu ,re,,,," " · '?,"'2' of fu.1. ''''', pm,,", I"""", 'I. 3398 ";"""d ^'c,~, H'~ f, '''=.. d""'bed ~ &1",,, A "'h.d ",",'0 "" "odo . _ h_f AlIOfLl''',regof,g " ~1. fu ' " . hL=m "d '- 2. Th. '"""1'- "'"' Will '" fiw (5,_ ~"If", T.m,., ","",~'"g ., d,. bel. , "=~ ".~"'''' Lh. L<.., 'bow r'C,,",_~_, "'.', , w;fu Lhreo (3) '",~,";w fiw (5) Y'~ ",I.,~, . . . mod ,,~''''''''' m 3 . Th" M'''O""d.,, 'fL..., C 'm '""'dcd ''''''d " "odlfy, "d ",,,1/ 00' bc d~ _ ."'by "lffi'" ,,"~d,"g " """'",". My 'f a. ..., ""dll"" " "''';';0'' oEL", ,,",0, .1/ of w'",h d "" _;';0" Md '''''''cd. I, .. ",m of. ""fucr ""- '''' P''';';~, of .;, M''''''mlu" of ""'~ :' '" "', "'~'If of 'fa. L<m., a. Jno''''"'' 'fa. "",, "",,~'"" T", L_ ,"," '" '''dIDg upou =d m~ ~ ., -,,, Md Lhc" "'-" ""'" -"'on, "" "';"', "'i", '" Lh. "''';'feu, of"'o L~ . . " 09 hYMdh<<w=nlE ThIS Memorandum of Lease IS entered Into this day of ,2D , h "D" Street San CITY OF N . . ------ ~ fJDD Nort , . SA BERNARDINO" """'''' ~_"'" '"'I.", ""'Ii" "'dre~ 0 /TED "'_d'", CA 924" ",,",f"'Ie, .f_ "& """"0 Md toSANGELES SMSA UM f 180 l'ARTNERsifIP, , 0.1;10,,;. Ii",,,,,, _;p d" V'ri~, IV'.I", h..f'g, _/,/,fog ,dd,,,, ~ ref_ '" lV&h"." V'/,Joy Ro,d, 'cdm;"." N~ J_ 0792/, A"";o,, N_", R~' "'.1., (h,rem as "Lessee"). ESSOR: E CITy OF SAN BERNARDINO, unicipal corporation CHARLES E. MCNELLY, City Manager LESSEE: LOSANGELES SMSA LIMITED PA~TNE:~~~~ a CalIfonlJa 1Jmlted Partnership dba Venzon By: AirT OUch CellUlar, its General Partner W AL TER L. JONES. JR.. Area Vice President _ Network Date: 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 00" 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 63" 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 011, gas and other minerai 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. 6/1/09" Item No. 25 Item History Backup distributed on 4/20/09, Item No. 11 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 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). Dept: Development Services Date: April 13, 2009 File: 15.06-164 MCC Date: April 20, 2009 Synopsis of Previous Council Action: 5/7/2008 - Resolution No. 2007-145 was adopted approving an agreement with ATS Communications for development and implementation of a Wireless Master Plan. Recommended Motion: I. Adopted Resolution. AND 2. Authorize the Director of Finance to amend the 2008/09 adopted budget by increasing revenue account number 001-000-4523 by $6,100 and General Government expenditure account number 001-182-5505 by $1,000. fi1wUu,lw Valerie C. Ross Contact Person: Ryan Sandoval Phone: 5226 Supporting data attached: Staff Report, Map, Reso, & Lease Ward(s): 4 FUNDING REQUIREMENTS: Amount: None Source: (Acc!. No.) N/A Council Notes: Acct. Description: N/A Finance: T(lUiOl.t.~ 1>re.VillL.tSI~ l},t2lp ~ e,lIlb\o\-~lA.{ ~11'ijoq I ~ 2-1 Agenda Item No. 2-5 (g-' -ocr ~-Pa'3e.s: CITY OF SAN BERNARDINO REOUEST 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: In May of 2007, the Mayor and Common Council approved an agreement with ATS Communications for the development and implementation of a Wireless Master Plan. The plan will identifY current wireless facilities located within the city (on public and private land) available for location of cell towers, and future needs of wireless communication. A TS has the exclusive right to market all City owned sites to potential wireless providers and to facilitate the placement of wireless communication cell towers and facilities. A TS submitted a draft Wireless Master Plan Study in May of 2008 and requested input from City staff. A TS expects to have the study finalized by the end of this year and it will be brought forward for Council approval. Under the terms of the agreement, A TS receives 25% of the revenue from each new lease. New leases are described as those that are approved by the Mayor and Common Council during the term of the agreement for any portion of a City property between the City and a third party. The initial term of the agreement is five years and will terminate on May 31, 2012 if not renewed. ATS will continue to collect 25% of the revenue from the lease agreements until such time that they expire or revenue ceases. A TS has submitted the second lease agreement under the terms of their agreement. Los Angeles SMSA Limited Partnership, commonly known as Verizon Wireless, submitted a proposal to lease 987 square feet of property at Fire Station No. 228 located on the Northwest comer of Highland Avenue and Orange Avenue, at 3398 Highland Avenue (APN 0285-191-05), for placement of a 75' cell tower disguised as a functional fire hose rack that will allow the Fire Department to dry their fire hoses and/or equipment. Los Angeles SMSA Limited Partnership will be responsible for any utilities consumed by their equipment. The Fire Department has reviewed the proposed lease and agrees to the design of the drying tower. The agreement provides a five (5) year term with the option of three (3) successive five (5) year renewal periods. The initial monthly rent is $2,000.00 per month with a 4% increase each annual anniversary of the commencement date. The term of the lease arrangement begins upon execution of the lease agreement and lease payments will begin 30 days thereafter. Construction of the cell tower at Fire Station No. 228 is expected to start in mid 2009. Los Angeles SMSA Limited Partnership has received land use approval and filed an application for a building permit. 2 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). FINANCIAL IMPACT: The lease payments will begin 30 days after the execution of the Lease by both parties. The projected gross revenue for 2008/09 is anticipated to be $4,000 (2 months x $2,000). A TS will receive 25% of the revenue as compensation, which is $1,000. 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 2008/09 is anticipated to be $6,100. The total net revenue over the five (5) year period is $97,493.80. RECOMMENDATION: I. Adopt Resolution; and 2. Authorize the Director of Finance to amend the 2008/09 adopted budget by increasing revenue account number 001-000-4523 by $6,100 and General Government expenditure account number 001-182-5505 by $1,000. ATTACHMENTS: Vicinity Map Site Plan Resolution 3 Location of Proposed Lease Area Highland Ave. Base Line St. 5th SI. Orange how Rd. ~ . o c ~ ll. ~ >= MillSI. .. . o j{ VICINITY MAP :J ..... ,.,., !II CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT REAL PROPERTY SECTION Proposed Lease Agreement with Los Angeles SMSA Limited Partnership (Verizon Wireless), for a portion of City owned property located at 3398 Highland Avenue (Fire Station No. 228). ~ indicates un-incorporated areas within City's ~ Sphere of Influence Created by: Ryan Sandoval Date: 03/24/09 ~n w. ~: ~~ ~" .~ ~~ ". " o ., i ~ " 1<1 ~ " < :l1 " ~ R ff : :::: '" z ~ '" ; g ~ ~ : ~ Il..=::.J1 "I .; .. ~8 a::-~ ~ l::l~:i I l.~~~~ , '8 ""' 3 <;I ~ o8~ a. za.", ~ ~ f ~~~ a !l1 '51!l~ <(]~ ~ " II " i "hili il i i !" ! !, I'!! ~; I ~lhill,11I1 'II . ~ ~ I ~! I ;:1 ,I, Ig, ~l i~~ ~ ;a; I@: h iU ~i: i!H -:i~ I~~;~ ffi~ I~~~! ~~~! ~~~~ I~~~; ~~ ui !'l; fiP --------rtr=D---!-!~!a~l-2o~~~:;~:~~------g--- -. ------ rl: '? .. I~" g~~ ~I :0 ~ ol~ 0 i'l" i I Ii ~~ II = _ _ _ - ~ ~ ~OO'2"""":W~_Et- ---- I Ii ! 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M~I;I ~:s!j; _13 ..::E 0 I d:-l " ~ ~<( o , " , w w W 0 . , II I I: .B HlHON ~ " ~ i: ~, ~j , [?ot H 8~ " !g '4~ ~a z ~ .. i'! '" ~I ~~~ ~"- ~!!!3 ~~~ ~~~ ~~! " - z o ~ ~ << ~ ~ < ~ , ~ ^ , : ;: .: >l ill ; >~i;L.~ ~ ~ '" '" '"'lil", ~ ~ ~ g 8 "d>-ze;; ~ ..,i!llh"g Z Z ... ~ II. zll.~~ ~ ~ ~ ~ ~ ; !I ~ ~~~if ~ ;,. ,- ~ '" .i:8~ <iiJ<<J<iiJ<<J<<J<8<<J ~ ,," II . . .. .. I! I I I I I 'II. . 0 II' ;,i ~ rr : >':;;= ,;,; m . . i 8 ~ < . " ~lo:ilO:J ~, mQ ~~U)~ ~ ~(Y) ~ . ~ ~ ! 8 := B <( . . II , J'lOdONO"H1l'!'llS..o-.'US!i31llMNOlllG'IOdOlId JNIllill>oo.a-.llV1VSYNN31....~NOZIlB'IQl!;OdOlIoI JNIlll3l>oo.o-.LOV1YSVNNllIl'fSSll3ll"""Zom CDOOdOlId- "O-.o;lYS>O"f~__lIO"""03SO<<<III. II i m Ii I. ' I:;I! I' ill' 1= i 11111 , , I: ~ i= ~ ~ w ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP, 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 AVENUE FOR A CELLULAR TOWER DISGUISED AS A FUNCTIONAL FIRE HOSE RACK (APN 0285-191-05). BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized and directed to execute on behalf of the City a Lease Agreement between the City of San Bernardino and Los Angeles SMSA Limited Partnership, dba Verizon Wireless for the lease of 987 square feet of City owned property at Fire Station No. 228 located on the northwest comer of Highland Avenue and Orange Avenue, also known as 3398 Highland Avenue (APN 0285-191-05), a copy of which is attached hereto, marked as Exhibit" I ", and incorporated herein by this reference. SECTION 2. The authorization to execute the above-referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. /1/ /1/ ~-.;20-0'l .Jf I ( 04/13/09 1 2 3 4 5 6 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LOS ANGELES SMSA LIMITED PARTNERSHIP, 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 AVENUE FOR A CELLULAR TOWER DISGUISED AS A FUNCTIONAL FIRE HOSE RACK (APN 0285-191-05). I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting 7 thereof, held on the 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 day of , 20_, by the following vote, to wit: Council Members: ABSTAIN ABSENT AYES NAYS ESTRADA BAXTER BRINKER SHORETT KELLEY JOHNSON MCCAMMACK RACHEL G. CLARK, City Clerk The foregoing resolution is hereby approved this day of ,2009. PATRICK 1. MORRIS, Mayor City of San Bernardino Approved as to Form: J.P~ ES F. PENMAN, City Attorney 04/13/09 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 "I" 04/13/2009 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 (II' x IT) 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 "8" 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 the date both Lessor and Lessee have executed this Lease ("Commencement Date"). 04/1312009 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 Pavments: (a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and 00/100 Dollars ($2, I 00.00) 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-Four Thousand and 00/100 Dollars ($24,000.00) "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. 04/13/2009 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 provlSlon 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. 04/13/2009 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. 04/13/2009 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 "8", 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-l", 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 04/13/2009 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 payor 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. 04/13/2009 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 ofthis Section 9. 10. Liabilitv 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-NIl, 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; (I) Commercial General Liability with limits of Five Million Dollars ($5,000,000.00) per 04/13/2009 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 maintaino! (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 modification or cancellation. (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) (collectively "Losses") to the extent arising from or related to the indemnifying party's 04113/2009 9 File No.: 15.06-164 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 II 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 oftheir 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/Possessorv 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 04/13/2009 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 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. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under 04/13/2009 II 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 other party, which default is not cured within sixty (60) days of receipt of written notice of 04/13/2009 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: (I) 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 04/1312009 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 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 II 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 04/13/2009 14 File No.: 15.06-164 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. 04/13/2009 15 File No.: 15.06-164 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 (IS) 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 04/13/2009 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 04/13/2009 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 ofthe 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 ofthe respective parties set forth below: Lessor: Lessee: City of San Bernardino Development Services Department Real Property Section 300 N D Street San Bernardino, CA 92410 Los Angeles SMSA Limited Partnership, dba Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate With a copv to: A TS 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 04/13/2009 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. G) 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. (I) 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. 04/13/2009 19 File No.: 15.06-164 (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. (0) Lessor covenants that Lessee, on paymg 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. III III 04/1312009 20 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 MARK WEINBERG, Interim City Manager Date: ATTEST: 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 EXHIBIT COPY By: W ALTER 1. JONES, JR., West Area Vice President - Network Date: 04/13/2009 21 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 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 011, gas and other minerai 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. 04/13/2009 22 File No.: 15.06-164 EXHIBIT "B" -Plat showing Leased Area & Access Easement- -Plat showing Utility Installation Area- 04/13/2009 23 File No.: 15.06-164 I ~l I ',;; :!;~ I;: i hi ~ ~e ~ ::l~;;I~ I~o. ~~ !~~ 'ii: 'll! 3;1', lili1l ;,: A ! I I.' 0 0'1 1;:1 W f' f,gjF rO Sgl 'Iii !!- ---- ~:--D--------:;---r-li8il-~~:~;~~-r--- ~l!8--- : ------ " . . ", ' ." ~ . 11 A~J I = '~: ; I it ~ I S:6 I, I: I !~ !~ II ii i h }I' .:'~. ~i il !!': III ! ,I s " . ~I i fillHli> , II I' ill II i llJ!L~'i Ii: i, , ',S " I' Il:1 r -" , , Ihl I!, . n ! Ii 'I I~' '-R i i:--~ I ! ;i~.!l'~;m ... .m./u i s /~;: I m: ,",.co,.,o".f' , I , I j i~~ ~~ ~ i~~ ~ g i~ ~o3 . 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" ~~ - ~ O"~~ ~ "'~~~O " "Z ~ .. t-c...zc <l:Il5iii~ .. ffi~~~ !.. ... ~=:J:::li:! ~ COCo ~ a..rr:.....s >-: MC >- , N , 3 .,.- W l~ A HJIJON - ~ , a j: I,' 'i .., 1,1 , 111 .. z Ii! F il !~~ '" III ~ 11 .. 9.' i .. 1I iI ~ i 15 '" ~ d ~ 5 i!1 " d <il ~ Q, ~ ~r~ , ! 'Ill. ill. 11;1 il~ ,'"ilji! I!I' 1'1'1' ill! !" '. I II Ill. , ll!' ~,"I""!'I'1 ,. "i""'" . ,I' I, .l"!! . ,!.I! !1,:"i!"~I~1 ~t5~~ ~~'~I~~~c:~ ,!I!! 1,II.illllil' '" ~ o z 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. 04/13/2009 24 File No.: 15.06-164 " , , !i z ,. ~g 4 , " I ! I: II / I i . ~l 1111,1111 I 1:11 !Ii . " 'li,'ipl ! ill! 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't ~!! ~~" 0 'I III ~l? ~ ~~ jt;." ~ ~~ .3 -I >= ,~' ~I f~ ~ ~; 3; l.~t" ,~ti ~ i C'3 d I~~'~ ~ ~~ is, 'l~i t ~, I t!l fr: "' " ~~.uI'; Jl , ~ (E1 Q:; , ,,! ""-""" 'I .,' ~~ :2 :l : Jt ~~ Sl'li! J t ~!~ .. ~ ~ v ~ ~ ~i o ~ l ~ . ~l Ci~ ~~ _ :c: ~ ~i n 'lJ~ ~ ~ "'\ ' !~ ~::J ~ 00 ~l 0: ~ i Ci ~ ~! ~, ; \,,); ~ " , z :5 ~ z o >= < o '" '" , II I i IJI I I II; i II" , Ill' . , 1111 '. :1 'il .+ '-I -t " , 'I' I , . , !I ~ ... u :::", ;';0 ul:': ~~ C1~ ~~ ::s ~~~ j~:r ~:i~ ~~~E l""",,, ,!:~",o. ~..~ ~ ~tJ li~.., ~i5~ ::S~ ~ ! ! '. ~ i ~ 5 :8 3 ~ , ] ,~:d :::l '?';' 2 -~ ,~~/, ! fr~r.;!., I ..s',. \ .:.', EXHIBIT "D" Memorandum of Lease RECORDING REQUESTED BY AND WilEN 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 924] 8 (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"). I. 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 the date both Lessor and Lessee 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 mod it)', 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 ofthe 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, a municipal corporation LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partoership dba Verizon Wireless By: By: AirTouch Cellular, its General Partner MARK WEINBERG, Interim City Manager W ALTER L. JONES, JR., West Area Vice President - Network Date: Date: 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 Intersectton of said centerline with the centerline of Orange Street; Thence North 890 43' 01w East along said centerline of Highland Avenue, a distance of 246.15 feet to the centerline of said Orange Street; Thence North 000 21' 29w West along said centerline of Orange Street, a distance of 460.60 feet; Thence North 820 29' 49w West, a distance of 186.86 feet; Thence South 630 18' 31 w 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 011, gas and other minerai 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. 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: 04/1312009 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 (II' x IT) 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 the date both Lessor and Lessee have executed this Lease ("Commencement Date"). 04/13/2009 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 Pavments: (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, I 00.00) for work performed. (b) Upon the Commencement Date, Lessee shall pay Lessor as rent, the annual sum of Twenty-Four Thousand and 00/100 Dollars ($24,000.00) "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 "0" 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. 04/13/2009 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. 04113/2009 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. 04113/2009 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-l", 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 Insvections: 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 04/13/2009 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 payor 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. 04/13/2009 7 (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. Liabilitv 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-Nil, 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; (I) Commercial General Liability with limits of Five Million Dollars ($5,000,000.00) per 04113/2009 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 modification or cancellation. (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) (collectively "Losses") to the extent arising from or related to the indemnifying party's 04/13/2009 9 File No.: 15.06-164 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 II 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/Possessorv 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 04/13/2009 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 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. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under 04/1312009 II 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 other party, which default is not cured within sixty (60) days of receipt of written notice of 04/13/2009 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: (I) 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 presenee 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 04113/2009 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 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 II 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 04/13/2009 14 File No.: 15.06-164 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 umeasonably 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 umeasonably 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. 04/13/2009 15 File No.: 15.06-164 18. Casualtv: 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 04/13/2009 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 04/13/2009 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 Development Services Department Real Property Section 300 N D Street San Bernardino, CA 92410 Los Angeles SMSA Limited Partnership, dba Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate With a copv to: A TS 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 04/13/2009 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 "0" 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. (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. (I) 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. 04/13/2009 19 File No.: 15.06-164 (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. (0) Lessor covenants that Lessee, on paymg 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. III III 04/13/2009 20 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: MARK WEINBERG, Interim City Manager Date: ATTEST: RACHEL CLARK, City Clerk Approved as to form: LESSEE: LOS ANGELES SMSA PARTNERSHIP, a California limited partnership, dba Verizon Wireless By: AirTouch Cellular, its General Partner By: WALTER L. JONES, JR., West Area Vice President - Network Date: 04113/2009 21 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 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 00" 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 63" 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 all, gas and other minerai 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. 04/13/2009 22 File No.: 15.06-164 EXHIBIT "B" -Plat showing Leased Area & Access Easement- -Plat showing Utility Installation Area- 04/13/2009 23 file No.: 15.06-164 m~mTrr~ttr1ll ~ '. rr - !~.'~ >:: ~ ' , , I ' ,I ~I !~i ~ Ij ~i . ~ ~~, 1,1, I ! 1 i il i . ~ci' . ~ h · '- w ~ I. I ltl s '13 LL ,. '", en 1/ . . ~ jw'l' ~ ~o~<8! ,S;~~ H" ~; Wti I, ~~I "i, , ~ > 1<8<<] ~ r71 :-1 ~ ~ ~<( ~ ~ ~ ~h " I"UII ! i dllull - II i~-!!iI W' ii' 1 !ehirdum t ! H' J HlIlON 'Ii! , I I '!!!l!tjJ1,'li'l'~ I I 0 , " I ., ,-. t., 'I ' I II II i I : I: 'Ill, ;!~! [;;1,11 iil ' el ~ "'~O~ ~~ h ~Otll I~' /Ill ;;ij 1I,Ii ;j: ,1:, ~:1! '!o, ,Gi I; H "I I.;" f;i' u q~ ~ ---- ;:-D----;-rli:il--'~~;~S"~;~---__y;g--- : ------ :'1 i Ii Ell 0 iit~-: ;: d .j,''; I c:: ;' , I ~ ~. I ~, ~ , ,I' , I 1.1 [ ! 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I",; ,<5, :3j: 't ~I 'UI :;II :j ~~ ~ Jj ; ,:tr 'j~ 1 .~ " ! ~ 'l~~ :i~~ '.:i 'II!, II' ,'I _rw .~c 1~; j" 1'~ -j;i3~'J) i~ }I lllll'ill!! .~'i'~~ "~0I!~1,\rl~~1 'j "d';,l., -"1 !-lei 'A' '- :l! 3 !>lf~l!~~ ,:~~~~: ",I. ' "!l"-,,,, . "'4') ~ -"'1" ''f'-~::'1 (.~~~~ gf1 ~~~~L:I '. :;f~ ~ ,::, .1';",,," lot -:~.. ~ I I Igl ~I I....i I UJ ~ 11J ~:-1 U:j n i",1 ~ ~ I '''I :3 ~ ~ ) ,<.:II /::' o is 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. 04/13/2009 24 File No.: 15.06-164 l " ,;;.,.... ~i , " , CO'0",.. .~_ Ii j m__~ 1 , 1,1 , , . i C , z fit! t5 ':J ~ .. 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I .i , 1 , ! , , ; ; , . , j . , l , i ! , I i . ! ! I; ,II ~ l~ ~~ ~ ~~ ~I!!~ . ~~; ~ ;~ ~5! . ;~ !~.( il ... 'I! Ii jl! l,i y ~ ~ t" ,: i '; 'I""! I' ./ "1 ~ }i~ ;,1, ~,~ ~ ; ~~ , ". II i!:.i' ~ ' ,- ~ '11 : 'I :1 ,; ;~. - j '~ :;. - ) ,j; . < ~~ ~ 2':' \~;.~ j ~ ',!!" !~ ~,-;; ".. . ,j :.1 i; ;! .~ .';;;; i ; ~l ',~ :'; 3 ; i ~j ,>,1; ~ '; ; c'} '/) . ~ ~ .1 -~:;: I' :S ;i~ .'.C,' .,;i ~.~.: '~";' ;,] ~,~;; ~ t . ~ ~ - ,;;1.; ol.,j ,iLdLi ; ,,4 ~r :' ~ .,1:1 :;~: ~'i ~.~ '.J ,,~ ~l 1:; ~ ~. ... ~. ~ .~ ~;~ ~ ., 4 " _ '! >t -11' ~ (~ ;" I~ I '~:;, i;!~ ,I;~ ) -~ i .~, ,);' ./ '1 I ~ :e:':j ~!l~ ~ ~~"" ~ :l. . f ! ..~ :~~ _,. i i!:, ~ " > , ! ' , I ! i 1 ! ~ ~ ~ 'i ~ '.~ :i ~l '1-' :j ;" .' . ,~ H; :: ~ H J ~ " ii ! ~~ i~ ~~ .' ., ~i ",' "I ~i . ~~ ~! \.)~ ~ I I : II: "11 . , ' i;~ ~ ~ , ,'I'd I . .1.1.. r ;1 -~j; I'! , i II 3. z .., ~ z o >= < co " '" .:i n 3 ~~1 /-.. ~"'~<'l:; U 8~~;; ~ ~ 3i~~~ ~ ~ .~~'"~~ u ~ ~.~;~. ~~ i:i3"4 ~~ J~ ~ ' :s :;;<- "'u u~.., "'<:<: ~u~ :s~ i - ,," ./~.: -'/fJ EXHIBIT "D" Memorandum of Lease RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: CITY OF SAN BERNARDINO CITY CLERK 300 N. "0" 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 "0" 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 the date both Lessor and Lessee 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. [n 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, a municipal corporation LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership dba Verizon Wireless By: AirTouch Cellular, its General Partner By: MARK WEINBERG, Interim City Manager WALTER L. JONES, JR., West Area Vice President - Network Date: Date: 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 Intersectlon 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 therefrorn all 011, gas and other minerai 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. , 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 "0" 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"). I. 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 the date both Lessor and Lessee 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 ofthe 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 WTitten. LESSOR: LESSEE: THE CITY OF SAN BERNARDINO, a municipal corporation LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership dba Verizon Wireless By: AirTouch Cellular, its General Partner By: MARK WEINBERG, Interim City Manager W ALTER L. JONES, JR., West Area Vice President - Network Date: Date: , 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 011, gas and other minerai 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. , 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 ofthe 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: 04113/2009 File No.: 15.06-164 I. 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 (II' x IT) 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 the date both Lessor and Lessee have executed this Lease ("Commencement Date"). 04/13/2009 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 Pavments: (a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and 0011 00 Dollars ($2, I 00.00) 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-Four Thousand and 00/100 Dollars ($24,000.00) "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. 04/13/2009 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 Lcssor. 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. 04113/2009 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. 04113/2009 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-l", 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 04/13/2009 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 "8". 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 payor 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. 04/13/2009 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. Liabilitv 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-NIl, 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 04/13/2009 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 modification or cancellation. (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. II. 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 arising from or related to the indemnifying party's 04113/2009 9 File No.: 15.06-164 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 II 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/Possessorv 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 0411312009 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 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. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under 04/13/2009 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 other party, which default is not cured within sixty (60) days of receipt of written notice of 04/13/2009 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, induding 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, induding, 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: (I) 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 04/13/2009 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 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 II 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 04113/2009 14 File No.: 15.06-164 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. 04113/2009 15 File No.: 15.06-164 18. Casualtv: 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 04113/2009 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 04/13/2009 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 Development Services Department Real Property Section 300 N D Street San Bernardino, CA 92410 Los Angeles SMSA Limited Partnership, dba Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate With a copv to: A TS 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 04/13/2009 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 "0" 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. (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. (I) 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. 04113/2009 19 File No.: 15.06-164 (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. (0) 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. III III 04113/2009 20 File No.: [5.06-164 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: MARK WEINBERG, Interim City Manager Date: ATTEST: RACHEL CLARK, City Clerk Approved as to form: J LESSEE: LOS ANGELES SMSA PARTNERSHIP, a California limited partnership, dba Verizon Wireless By: AirTouch Cellular, its General Partner By: W ALTER 1. JONES, JR., West Area Vice President - Network Date: 04/13/2009 21 File No.: 15.06-164 Exhibit "A" Legal Description of Property All that certain real property situated In the County or San Bernardino, State or 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 centerilne with the centerline of Orange Street; Thence North 89" 43' 01- East along said centerilne of Highland Avenue, a distance of 246.15 feet to the centerilne of said Orange Street; Thence North 00" 21' 29- West along said centerilne of Orange Street, a distance of 460.60 feet; Thence North 82" 29' 49- West, a distance of 186.86 feet; Thence South 63" 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 011, gas and other minerai 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. 04/13/2009 22 File No.: 15.06-164 EXHIBIT "B" -Plat showing Leased Area & Access Easement- -Plat showing Utility Installation Area- 04/13/2009 23 File No.: 15.06-164 m~m~Hi~ i IllI j ~~~,~ >: ~ -I 1 I I i I "'~.. ~ 01 '!? l= I I ~ ~ ~ ~"i ~ ~ ii . ~ ~ ~ j : 1 ' ! ,! 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'I' I ~~ ~1'ih1~p ~I' ,jll 111!!;!l!.!, ~'l~~ ';~:t~~.\~~~t.! I c. ~,.'''el:1! ~~'" ',"~I' I'Ll" " " .,t . - f.t!", ~. '. 4l ." ~::.~~ ~).~~l'J~~~~i '~~d;: "..",~. ~,;e;:,:oj (P~,<, tt ". ~~'-"I 'I' ';}~~ '~~J~,",,~~'J~~:~ IJ ~I I~I I~ ::1 I~i h f]' :'.. ,~ i~1 ..1,,/, i5 z ji5 /::i o' !5/ EXHIBIT "COO 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. 04/13/2009 24 File No.: 15.06-164 --"'<LII'''' . i ~ , _L 'I t "G".. .~- ~~ ;, ~~ I ,! ! 11 ! !! !.r r/! ~ ~~i H : ~!~: :;~ ~ ~ll'd i ~; " ! 51 ~ Hu~ ~ _, ~ g~...~ ~ ;, ~~ .~;~~ ~ i: ~~ ~~~: j 1~ ~: - !;i :,~ " / >~,~ :!~':~~ '~;g 4~ ' ..! 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',-,1 of' L! ;1" ~~ ,~ 'Y ~,i~ " ,,-,~. .~ .~ ',';j!'i 'i i,l .r:~ \ .n ~; ,::,;;~~~;~ ~ --\{ ':;..,l~ . _j;~hJ:~ .:~:;~:(;~; 81 ;'.:;H <~f'~~ (5 hH' :~~ r;f .~ ~ ~':" ..;~ .,,~! ;'3 ::ir:1:.',"/. r:' ~~~~h li'~.~ ~ I~<'~> ~~"i~'~ ~ i I'i C J' ;11 81 : _..~---~,- --I 8 8 ' I 'J ..1 -'I' -~ i 1; ;il ~~ ~'tlt !~ ~;~ f g~e ,~ ~ ~i 2~ ~i~ 1~ ~:i ,~~ 1 ,rr .j~ . < I~ }:f ~"4 .l 'I 'j ,!. ~~ <;;, ..,j iii' 'f II! , ~:' . ~; .'i ~,~ j! ' -, ,,~; ,~p~ ~ '~i~ ~; ,~~ ~~~ .~. }1i :~ ',' ,i ,:.;~.- .t,"; 1 ,; - ~ ~ , C," .~ ;;1 ~ >i ~ d .. ~~ ;-. ~ 1 ~j ::::: ~i ~ jt '/l ~ . t ~ ~ _! ",' t( ,,~ l ,: t ,i~ ,;~ ,'~"'~' .0, ,",:_,~ _;,~ ,~ ' _~ ~J :; J .' J :~! ~ .:; ~ -~ G tL .1'11 1-:' ~ ,:;t ~t -~.: ~i ~.! - ":~:l ~l~= '~ ",.~ 3;~ ~ .jl r'l':~;;: ':\~ ,;~ . ,~ i ~~ ;y :1 'j' ~f ; :j "::1 ; If ; ~~ .., J 9;: ... 't! J< :i~ ~~i' ~ (~.~ -^' - "-. '-. " '-. '" " > ll.1' ~j~d q," {"! !~ ~I / ! I' . ! , . ~ ~ ~ i , . , ~ i i ~ ! , I i I . i I , , , , ! ; i , i i i , I j 1 n I "'-4.,., ! ''': ..':", ...-1 [lIT k" L " , \ , ! ~ ! I i l , I . ! ~ ~ !jl -! ,;! 'I j', ~x ~ ~~ : I~' ,- ~ ; i ': "~ '~ ' .~ C' ~ ~. i " i~ ,> ., j. , . II Ii' ,jll, h i ~ , ! II Ii I " " -~- f; <~ r I 7 :3 ~ z " '" ., " '" '" II . ,j !)I I .;;: Ih C j~:~~ ~ W~~ll ~ ~ .~;;~R \.) f::: ~:~; ~~ ~W j! ~ ~... .,,'-' CJ~'" "'<, ~t:~ "">: oJ'" ~ ..~ '-..~,~ ,; ~;..I EXHIBIT "0" 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 of300 North "0" 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"). I. 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 the date both Lessor and Lessee 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 WTitten. LESSOR: LESSEE: THE CITY OF SAN BERNARDINO, a municipal corporation LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership dba Verizon Wireless By: AirTouch Cellular, its General Partner By: MARK WEINBERG, Interim City Manager WALTER L. JONES, JR., West Area Vice President - Network Date: Date: EXHIBIT "A" Legal Description All that certain real property situated In the County of San Bernardino, State of California, descrtbed 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. Exceptlng therefrom all 011, gas and other minerai 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. . 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: 04113/2009 File No.: 15.06-164 1. Pro1Jertv 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 (II' x IT) 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 "8" 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 the date both Lessor and Lessee have executed this Lease ("Commencement Date"). 04/13/2009 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 Pavments: (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, I 00.00) for work performed. (b) Upon the Commencement Date, Lessee shall pay Lessor as rent, the annual sum of Twenty-Four Thousand and 00/100 Dollars ($24,000.00) "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. 04113/2009 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. 04113/2009 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 umeasonably 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. 041\3/2009 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-l", 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 04113/2009 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 teleo board, as more particularly described and depicted on Exhibit "8". 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 payor 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. 0411 3/2009 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. Liabilitv 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-NIl, 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; (I) Commercial General Liability with limits of Five Million Dollars ($5,000,000.00) per 04/13/2009 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 modification or cancellation. (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. II. 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 arising from or related to the indemnifying party's 04113/2009 9 File No.: 15.06-164 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 II 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/Possessorv 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 04/13/2009 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 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. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under 04113/2009 II 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 other party, whieh default is not cured within sixty (60) days of receipt of written notice of 04113/2009 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: (I) 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 04113/2009 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 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 II 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 041l3/2009 14 File No.: 15.06-164 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. 04113/2009 15 File No.: 15.06-164 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 tirst. 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 sueh taking (or in the absence of such notice, within fifteen (15) days after the 04113/2009 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 04/13/2009 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 Development Services Department Real Property Section 300 N D Street San Bernardino, CA 92410 Los Angeles SMSA Limited Partnership, dba Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate With a copv to: A TS 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 04113/2009 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 "0" 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. (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. (I) 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. 04/13/2009 19 File No.: 15.06-164 (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. (0) Lessor covenants that Lessee, on paymg 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. III III 04113/2009 20 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: MARK WEINBERG, Interim City Manager Date: ATTEST: RACHEL CLARK, City Clerk Approved as to form: LESSEE: LOS ANGELES SMSA PARTNERSHIP, a California limited partnership, dba Verizon Wireless By: AirTouch Cellular, its General Partner By: W ALTER L. JONES, JR., West Area Vice President. Network Date: 04113/2009 21 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, descrlbed 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, II distance of 460.60 feet; Thence North 820 29' 49' West, a distance of 186.86 feet; Thence South 630 18' 310 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 011, gas and other minerai deposits, lying below a depth of two hundred feet, as reserved In the Deed recorded July 25,1968 In Book 7065, Page 990 of Offlclal Records. 04/13/2009 22 File No.: 15.06-164 EXHIBIT "B" -Plat showing Leased Area & Access Easement- -Plat showing Utility Installation Area- 04113/2009 23 File No.: 15.06-164 id i '"HI I "dld!!1 ! 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J, , ;:;r : ::~ ~Jti -;-;-- --, ;lt~:J::1-*::\~W' I aLII) 'I"' , C"I"' I I'I'~'I I' ~ ., i! ,,' I _;...L, '! ~ 'I 'i'~i I ' ~.:'J, ! r::-...u...,,,,J' _~~~~ I . 1_(. t' ~ 1:~~3 -.,. I '/ '1/ ~ I ~1~+--':.."" I !il.' ~c~__"'.~, : ,_ ___ .~I/ ~ . - ----, ----- , i I I 1::11 ~I IJ!' .w 'z, ~I I"..: ~ ' ,.'~ Pi I 1(1)1 '1"1 I~I i5 z !'" I'" 1:1 ii/ '=> EXHIBIT "COO 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. 04/13/2009 24 File No.: 15.06-164 '?,,,..,~- ~~ j, ~~ 1 .~ ~~ ~~i "'l 1 "'j;l~ ~ :: ~!~" :: ~ ~,'Y~~ I ~~ ; "1'" !' 1 rtu~ ~ :;1 .~~~2~~! ij ;;O!~ i H !J ~~::: ~ U .~: . \~; ~'; ;'. 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'.~i ~. l~ f" j't < ," ~ .. . ~ : ,; j .:. ~ :~ ::~ ;i ; j:: ~ ii'.. ;1'; ;1 ; ,j;; ,'"I,L,1I.,: .i.';':.,~. ,~ <'~ ';~ ,.; j ~l'~ _ ~_ ' G t~ "" r ' .,1.' :1: ~ ) :; j ~ ,~'! i: ~: J it :;:~~ ,fi~ j ~f,~;~ :~ ; . i ': ! < ~ : ~ 2 ~,.;! ~ ;- ., ~I ! i I , I ! . . , , , s , ~ I < - ! ! . , , I ! l \ i i . l l I l ~ 'i ~ ;1 J;j :~ ~';: :~ " ::;~ I,';:; ;] c :~ " ~ ill! ~ ,- ~ I i~ .. ., j. , !, II IJI'I , II, I' I i!I';1 !i ~: ~ < " _J_ ii J'! z 5 ~ z o '" -< " '" " II .:1 Iii ~ ~ ~~~ t; ~~~r~ ~ 3fP ~ ~ ~~1;J U E::: ~..~~ ~ ~ ~i~! ~~ ~ ",i:; ~ i "'... 0,,, C~-..J ""::::'t: ~a~ j~ -, ,,' ._~~ -/:J EXHIBIT "D" Memorandum of Lease RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: CITY OF SAN BERNARDINO CITY CLERK 300 N. "0" 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 of300 North "0" 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"). I. 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 the date both Lessor and Lessee 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 ofthe 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, a municipal corporation LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership dba Verizon Wireless By: AirTouch Cellular, its General Partner By: MARK WEINBERG, Interim City Manager WALTER L. JONES, JR., West Area Vice President - Network Date: Date: 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 minerai 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. 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 ofthat 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 ofthe 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: 04/13/2009 File No.: 15.06-164 1. Propertv 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 the date both Lessor and Lessee have executed this Lease ("Commencement Date"). 04/13/2009 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 ofthe Initial Term or then-current Renewal Term. 3. Lease Payments: (a) Lessee shall pay Lessor the sum of Two Thousand One Hundred and 00/1 00 Dollars ($2, I 00.00) in addition to rent for a docwnent 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 docwnent 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-Four Thousand and 00/100 Dollars ($24,000.00) "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. 04/13/2009 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. 04/13/2009 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. 04/13/2009 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 "8", 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-I", 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 04/13/2009 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 payor 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. 04/13/2009 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. Liabilitv 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-NIl, 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 04/13/2009 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 maintaino! (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 modification or cancellation. (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. II. 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 arising from or related to the indemnifying party's 04/13/2009 9 File No.: 15.06-164 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 II 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 oftheir 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 04/13/2009 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 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. Upon assignment, Lessee shall be relieved of all future performance, liabilities, and obligations under 04/13/2009 11 File No.: 15.06-164 this Lease, provided that the assignee asswnes 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 04/13/2009 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: (I) 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 04/13/2009 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 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 II 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 04/13/2009 14 File No.: 15.06-164 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 ofthe 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. 04/13/2009 15 File No.: 15.06-164 18. Casualtv: 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 04/13/2009 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 ofthe 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 04/13/2009 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 Development Services Department Real Property Section 300 N D Street San Bernardino, CA 92410 Los Angeles SMSA Limited Partnership, dba Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attn: Network Real Estate With a copv to: A TS 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. (t) 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 04/13/2009 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. (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. (I) 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. 04/13/2009 19 File No.: 15.06-164 (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. (0) Lessor covenants that Lessee, on paymg 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. III III 04113/2009 20 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: MARK WEINBERG, Interim City Manager Date: ATTEST: RACHEL CLARK, City Clerk Approved as to form: -;:> ~ SF. PENMAN, City Attorney LESSEE: LOS ANGELES SMSA PARTNERSHIP, a California limited partnership, dba Verizon Wireless By: AirTouch Cellular, its General Partner By: W ALTER 1. JONES, JR., West Area Vice President - Network Date: 04/13/2009 21 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, descrlbed as follows: Real property In the City of San Bernardino, County of San Bernardino, State of California, descrtbed 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 89043' 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 011, gas and other minerai 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. 04/13/2009 22 File No.: 15.06-164 EXHIBIT "B" -Plat showing Leased Area & Access Easement- -Plat showing Utility Installation Area- 04/13/2009 23 File No.: 15.06-164 II II~W . d!.IUj ij" III !!~. lilB. lum I 'II ~ I I:: I ,II JI'O'1..lOd:llId"'ros Ol.lOlal"""""-.'" ~... J'" AJ.lOdOlId....flOS _ _ _ _ ~~_ +_ ~ 01 :~~~/'Q,_:".o'-~ a~ :r I i,~ e;1f:::: tl,!"U :1F 11 ii'!'! i,~. ... ,Ii .. ~a ~g ill, I'.' ."r I!!: r ", I · i i,1 11- " ;~ I': lld,l II YCl > 'I "II'" 'I 01 'c' I 5~, ~ H~~l5 ':::i j::J i ;! id :', I;: illj:! II ~li ,"; ill ~ <J~~ ~ "of 1~ i ~ 3 "!I~ cl'l :',' iI'll Ii I 'Ii II I,' , 01 ~! .>j'l OJ ~ ~I " .,p ! ~ ~,l 'j' l'il. 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S'. ~ 0 <L N 1I ~ e ~ ~ w ':i <L . ~, . ~i~ '" i'! o z ~ ffi ~ /: ::> F ::> 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. 04/13/2009 24 File No.: 15.06-164 j ~ .,;:U;." .. '"?J,,"",~~~ ~~ ~g " " 11 ,I 11 ~~ lTll 'lit: J,;rllil:~1 " I:>. ~ ~ I ~ i 8 ~ "~ 11~jli:111 ; ',i ~I' i '" i ~: :"' ~ i.___+_1 , " , , ! i I!~.;I , I: I L_-.J a r~ ~ ~~ '"~ J hi ~~ : ~j~~ ~~ ~ ~iJ~ ! ~j ":~~iJ1'i~~~ ~ i1i~ ~ U ;g,:,!.. !l1mj!! o z w ~ "J ~ < ~ < " ~ z :5 "- o z < ~ '" o z ~ z eo z :5 "- N , ~~~~e~! ~;~"~ ~.J.".~,. ~:l ,~ i~ ~~~ n ;;! -~ ~ - - ~;!. ;t, ;a~ ~t, s~ll! .,!! ."" 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VJ r ~~ .~ ~iIj~~~~~~, 111~U ~ ~ ~~ ~ ;~ Ji ~<"lc~ z: !t~i :i ~!~~l!~~~ ~:~i!~ ~ J ~ ~~ ~ ~:ijf ;~!~~I ~ ~;~ji ~~ l}ii*~i;~i J~:;~~ j!H; ~ ~i: ~~3;!! J~~;si~ ~ f~<>~,)~! :n~:~E~.. .~~: ~I ;': ,~~~ -ih ~ ~f.~~~~ E!F~~S i ~ ~ ~ ~ ~ ~ ~ ~~. ~_~ ~ :J ~ ~ ~~. ~~ .l.l~ .. ., ~ ~ ~ v ~ ~ Ii ~ <' ,,;; .., , i~ ~ . , Ii Ii j; ; I ! ill i I , ~ i ':"1---; "".ill: , . r: 7 :5 ~ z o C' < '-' "' '" i II '! " !i ~~, !--o J::j",~ U p~ t.IJ w~~ 0- ~ ...~ ~ 0 '-"~~ u g::; ~:~ Wii 3 ~ ~tJ u~"' "'~" ~u~ 3~ ~ ~ ~ . ~ I w w :: ~:i5 ~ :~!,~ o . t........~.:. ; ~.fI 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 A venue, 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 the date both Lessor and Lessee 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 ofthe 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, a municipal corporation LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership dba Verizon Wireless By: AirTouch Cellular, its General Partner By: MARK WEINBERG, Interim City Manager W ALTER L. JONES, JR., West Area Vice President - Network Date: Date: p 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 W East along said centerline of Highland Avenue, a distance of 246.15 feet to the centerline of said Orange Street; Thence North 000 21' 29w West along said centerline of Orange Street, a distance of 460.60 feet; Thence North 820 29' 49w West, a distance of 186.86 feet; Thence South 630 18' 31 w 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 011, gas and other minerai 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.