CITY OF FULLERTON
Community and Economic Development Department
June 1, 2021
Los Angeles SMSA Limited Partnership
DBA Verizon Wireless
180 Washington Valley Road
Bedminister, NJ 07921
ATTN: Network Real Estate
RE: Telecommunication Site Lease Agreement – West Pioneer (Coyote Reservoir)
To Whom It May Concern:
The City of Fullerton and Verizon Wireless entered into a telecommunicate Site Lease Agreement on November 23, 2020. The purpose of this letter is to help establish consensus between Verizon Wireless and the City of Fullerton on the official commencement date of the Lease Agreement.
Per Section 3 of the agreement “the term of this lease shall be five (5) years (“Initial Term”) commencing on the first day of the month in which the Lessee begins construction of the Lessee Facilities or on the first day of the seventh (7
th) month following full execution of this Lease (“Commencement Date”), whichever occurs first”.
The Lease was fully executed by the City on November 23, 2020. The f irst day of the seventh (7 th) month following full execution of the lease would be June 1, 2021. As of today, construction of the Lessee Facilities has not started. Therefore, per the language in the lease agreement the “commencement date” shall be June 1, 2021.
If you believe there is an error in the establishment of this commencement date or have any questions regarding the above information, you can contact me at 714.738.6837 or [email protected] .
Sincerely,
Kellee Fritzal
Deputy Community and Economic Development Director
CC: Ellis Chang, Director of Administrative Services
THE EDUCATION COMMUNITY
303 West Commonwealth Avenue, Fullerton, California 92832-1775 (714) 738-6598 Fax (714) 738-3110 Website: www.cityoffullerton.com
1 Coyote Reservoir
Telecommunication Site Lease Agreement
Verizon Wireless – 2470 W. Pioneer Ave.
This Telecommunications Site Lease Agreement (Ground) (the "Agreement" or the "Lease") is entered into this day of , 2021 between Los Angeles SMSA Limited Partnership, a California limited partnership d/b/a Verizon Wireless ("Lessee"), and the CITY OF FULLERTON, a municipal corporation ("Lessor").
For go
od and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Premises. Lessor is the owner of a parcel of land (the "Land") located in the City of Fullerton, County of Orange, State of California, commonly known as Coyote Reservoir, located at 2470 W
. Pioneer Ave; APN: 28 0-021-03. The Land is more
particularly described in Exhibit A attached hereto. Lessor hereby leases to Lessee and Lessee leases from Lessor, (i) a parcel of ground space measuring twenty-two feet ( 22') by twenty -two feet ( 22') for the installation, operation and maintenance of Lessee's antenna structures and related appurtenances, together with aerial space extending beyond such ground space, and above those portions of the Property over which the antennas, related appurtenances, and branches of Lessee's proposed antenna structure extend, and (iii) necessary access and encroachments for utility purposes (collectively, the "Premises") as described in Exhibit B and shown on Exhibit C attached hereto. Utility routes located outside of the lease area described in subsections (i) and (ii) above will require a separate encroachment agreement and reasonable additional fees shall apply.
(a) Should Lessee request to expand the Premises for the Lessee Facilities (as defined in Paragraph 7(a) below) beyond the square footage of the Premises, Rent (as defined below) shall be increased in proportion to the extra square footage included in the revised Premises and as mutually agreed upon by the parties. Expansion of the Premises is subject to the approval of the Parks and Recreation Department.
2. Use. The Premises may be used by the Lessee for any lawful activity in connection with the provision of wireless communications services by the Lessee, to include but not limited to installation, operation and maintenance of Lessee's equipment, antenna structure and related appurtenances. 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 ("Governmental Approvals"). Nothing herein constitutes a discret ionary approval or pre- commits Lessor to any discretionary approval. Notwithstanding the foregoing, Lessor shall have no obligation to alter, influence or otherwise modify any permitting procedure, which Lessor ordinarily administers pursuant to its permitting authority.
3. Tests and Construction. Lessee shall have the right at any reasonable time during normal business hours which shall be Monday through Friday, 9 AM to 5 PM following the full execution of this Agreement to enter upon the Land for the purpose of: making 2 Coyote Reservoir
appropriate engineering and boundary surveys, inspections, soil test borings, other reasonably necessary tests and constructing the Lessee Facilities.
4. Term. The term of this Lease shall be five (5) years ("Initial Term") commencing on the date of approval of building permits by the City Commencement Date"), and terminating on the fifth anniversary of the Commencement Date and shall be automatically extended for three
(3) additional five (5) year terms (each a "Renewal
Term
") unless terminated in writing by Lessee with at least six (6) months ’ notice, or unless otherwise terminated as provided in Paragraph 12 below.
5. Additional Extensions. If at the end of the third (3rd) Renewal Term this Agreement has not been terminated by either party by giving to the other written notice of an intention to terminate it at least three (3) months prior to the end of such term, this Agreement shall continue in force upon the same covenants, terms and conditions for a further term of five (5) years and for five (5) year terms (" Additional Renewal Terms") thereafter until terminated by either Party by giving to the other written notice of its intention to so terminate at least three (3) m
onths prior to the end of such term. Annual rental for each such additional five (5) year term shall be equal to the annual rental payable with respect to the immediately preceding five (5) year term, subject to item 6(b) herein. The initial term and all Renewal Terms and Additional Renewal Terms shall be collectively referred to herein as the "Term."
6. Rent.
(a) Within thirty (30) days of the Commencement Date and on the first day of each calendar month thereafter, Lessee shall pay to Lessor as rent THREE THOUSAND TWO HUNDRED DOLLARS ($3,200 .00) ("Rent") per m onth.
Rent shall be payable to: Lessor: City of Fullerton, 303 West Commonwealth Avenue, Fullerton, CA 92832 Attn: Accounts Receivable.
(b) The Rent due hereunder will be adjusted upwardly by 3% annually on the first day of
the month in which each anniversary of the Commencement Date occurs throughout the Term.
(c) Lessee has submitted, to Lessor, an application fee in the amount of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) for Lessor's costs for the review and implementation of the conditions and terms this Agreement.
Lessee will, in concurrence with the execution of this Agreement, post an additional FIVE THOUSAND DOLLARS ($5,000. 00) refundable deposit for the Lessor's inspector's time and cost for the inspection of Lessee Facilities during the installation/construction process. Any portion of such deposit which is not incurred in connection with such inspection shall be refunded to Lessee within thirty (30) days following the completion of Lessee facilities.
7. Facilities; Utilities; Access.
(a) Lessee has the right to construct telecommunication facilities thereto as further shown on Exhibit C ("Lessee Facilities") attached hereto. In 3 Coyote Reservoir
connection therewith, Lessee has the right in accordance with the plans approved by Lessor, which Lessor shall not unreasonably withhold, condition or delay and pursuant to Paragraph 11 below, to do all work necessary to prepare, maintain and alter the Premises for Lessee's business operations and to install transmission lines connecting the antenna(s) to the transmitters and receivers. Lessee, during construction of the Lessee Facilities, shall have vehicular access to the Premises via the access path as shown on Exhibit C.
Upon completion of construction, no further vehicular access will be allowed (except in connection with future improvements or alterations that reasonably require vehicles delivering heavy construction material for or as said vehicle is specifically required for the actual improvements or alterations) and the access path shown on Exhibit C will be for pedestrian access only. Vehicular access will be limited to those vehicles delivering heavy construction material for or as said vehicle is specifically required for the actual construction of the Lessee Facilities. No parking of any kind shall be allowed on the Land, all parking shall occur on the street. Lessee will be responsible for any damages to the Land to the extent caused by Lessee's vehicular activity at the Land.
Lessee will coordinate any work to be performed, at the Premises, with the Parks and Recreation Department prior to its commencement to ensure said work will not interfere with any previously scheduled events or programs on the Land.
(b) 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. Title to the Lessee Facilities shall be held by Lessee. All of the Lessee Facilities shall remain Lessee's personal property and are not fixtures. Lessee has the right to remove all the Lessee Facilities at its sole expense on or before the expiration or earlier termination of this Agreement; provided, Lessee repairs any damage to the Premises caused by such removal. Notwithstanding any contrary provision of this Agreement and upon termination per the terms contained herein, Lessee shall not be required to remove any foundation more than three (3) feet below grade level.
(c) Lessee shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company. Lessee shall provide for separate utility service from any utility company that will provide service to the Land.
Lessor agrees to sign such documents or encroachment agreements as may be reasonably required by said utility companies to provide such service to the Premises. Any encroachment agreement necessary for such power or other utilities will be at a location acceptable to Lessor and the servicing utility company.
(d) Lessee, Lessee's employees, and authorized contractors, and subcontractors, shall have access, subject to reasonable public safety rules and site security considerations which may be adopted by the Lessor from time-to-time in writing and of which Lessee is given notice and applicable laws, to the Premises without notice to Lessor twenty -four (24) hours a day, seven (7) days a week, at no charge. Lessor grants to Lessee, and its agents, employees, contractors and subcontractors, a non-exclusive right to enter the Land for pedestrian and vehicular ingress and egress, subject to Paragraph 4 Coyote Reservoir
7(a) above, across that portion of the Land described in Exhibit A attached hereto, subject to reasonable public safety rules and site security considerations which may be adopted by the Lessor from time- to-time in writing and of which Lessee is given notice. Lessee understands the right to access the Land is not the granting of an easement right by Lessor and shall not be construed as such.
(e) Lessee shall obtain the necessary permits for the construction of structures, the installation of antenna facilities, the installation of overhead or underground cables, conduits, and other appurtenances, and nothing herein shall constitute a waiver or discretionary approval on the part of the Lessor of any action which requires discretionary approval pursuant to otherwise applicable law.
8. Interference.
(a) Lessee shall operate the Lessee Facilities in a manner that will not cause unreasonable interference to the telecommunications operation of Lessor- and other lessees or licensees of the Land, provided that their installations predate the date of this Lease. All operations by Lessee shall be in compliance with all applicable Federal Communications Commission ( "FCC") requirements.
At all times, Lessee shall ensure that the Lessee Facilities comply with the most current regulatory and operational standards including but not limited to radio frequency emissions standards adopted by the FCC and antenna height standards adopted by the Federal Aviation Administration. If the Director has reasonable evidence that Lessee Facilities, as construc ted, may emit radio frequency emissions that are likely to exceed FCC standards, the Director may require post-installation testing, at Lessee's expense, to determine whether to require further mitigation of radio frequency emissions or the Director may require Lessee to submit written certification that the facility is in compliance with such FCC standards.
(b) Subsequent to the date of this Lease, Lessor shall not permit itself, its lessees or licensees to install new equipment on the Land if such equipment will cause interference with Lessee's existing operations. In the event of any such interference and said interference does not cease promptly, the parties acknowledge that continuing interference may cause irreparable injury and, therefore, without limiting the foregoing and in addition to any other remedies available to Lessee pursuant to law or equity, in the event Lessor fails to promptly correct any interference with Lessee after receipt of written notice, Lessee may terminate this Agreement without liability. Except as provided in Paragraph 24, all new requests to share the use of a site presently occupied by another lessee (or lessees) must include documented concurrence I approval from the lessee(s) currently on the desired site.
9. Taxes.
(a) If personal property taxes are assessed, Lessee shall pay any portion of such taxes that are directly and solely attributable to the Lessee Facilities. Lessee shall pay all real property taxes, assessments and deferred taxes levied solely 5 Coyote Reservoir
on the Premises or any possessory interest held by Lessee relative thereto.
This provision constitutes notice to Lessee pursuant to Revenue and Taxation Code Section 107.6 regarding the creation of a potential possessory interest.
Lessor will pay or cause to be paid when due all other real estate taxes and assessments attributable to the Land, if any. Lessee shall also pay any increases in real property taxes and assessments levied against the Land solely as result of the improvements constructed by Lessee on the Premises.
Lessee's responsibility pursuant to this Section 9 shall be limited to the taxes hereinabove allocated to Lessee ("Taxes") assessed for tax periods during the Term, prorated for any partial tax periods during such time. Lessee shall pay any such Taxes assessed to Lessor within sixty (60) days after receipt of satisfactory documentation indicating the calculation of Lessee's share of such Taxes and payment of the Taxes by Lessor.
10. Waiver of Lessor's Lien.
(a) Lessor waives any lien rights it may have concerning the Lessee Facilities, 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 from time to time enter into a financing arrangements, including promissory notes and financial and security agreements for the financing of the Lessee Facilities (the "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 int erest 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.
11. Lessee shall not make or cause any substantial alterations or improvements to be made in or on the Premises (except for upgrades or replacements of "like- kind" equipment which is comparable in dimensions and/or weight and wholly contained within Lessee's Premises) without first submitting its plans and specifications for such substantial alterations to Lessor for Lessor's written approval, which shall not be unreasonably withheld, conditioned or delayed. In the event Lessor fails to approve or request revisions to such plans in reasonable detail within thirty (30) days following Lessee's submission thereof, Lessor shall be deemed to have approved such plans. In no event shall Lessor condition approval of any proposed modifications, alterations or improvements contained within the Premises on an increase in rent or other financial consideration. Lessee shall obtain all applicable Federal, State and local permits and approvals prior to any such alterations or improvements taking place in/or the Premises.
12. Termination.
(a) In addition to any other termination rights set forth in this Lease, this Agreement may be terminated without further liability on thirty (30) days prior written notice as follows: (i) by Lessee if it does not obtain or maintain any license, permit or other approval or any easement necessary for the 6 Coyote Reservoir
construction and operation of the Lessee Facilities, provided the Lessee utilized reasonable due care in so seeking, or (ii) 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 (iii) by Lessee if Lessee for any other reason, in its sole discretion, determines that it will be unable to use the Premises or the Premises becomes obsolete. Upon termination pursuant to this or any other paragraph of this Lease, Lessor will promptly refund to Lessee any prepaid Rent applicable to periods after the date of termination unless such termination is a result of Lessee's default.
(b) In the event that the Lessee's Facilities materially and adversely interfere with a Fullerton City Council approved public project on the Land (i.e., any project owned, controlled, leased, or otherwise providing a material benefit to the City of Fullerton or its residents for the Land), Lessor will provide Lessee with at least ninety (90) days prior written notice of such interference. To the extent reasonably possible, Lessee shall have the right to complete system modifications to the Lessee Facilities on the existing Premises to mitigate the interference and continue its use thereon with the approval of Lessor, which shall not be unreasonably withheld, conditioned or delayed. If mi tigation of such interference is not reasonably possible after good faith consultation between Lessee and Lessor, then Lessor shall make good faith reasonable efforts to relocate the Premises to an alternate location on the Land of substantially similar size and providing at least equal signal quality and coverage as Lessee enjoyed from the Premises. Lessor will ensure that the relocation site will not result in material interference with the approved public project or any future public project. The relocation shall be subject to Lessee's prior written approval. Lessee shall have at least two hundred seventy (270) days from the identification of a mutually acceptable relocation site to complete such relocation; provided, however, that such relocation shall be conditioned upon Lessee obtaining any approvals, licenses or permits required for such relocation. Notwithstanding the foregoing, Lessor will only have a one- time right to relocate the Lessee Facilities and such reloc ation can only occur after the 7
th anniversary of the Commencement Date and will be at Lessor's sole cost and expense. Any such relocation must not interrupt Lessee's services.
Pending completion of the permanent relocation alternative, Lessee shall also have the right to operate a temporary mobile operating unit on the Land or a mutually agreeable location proximate to the Land as necessary to continue to provide uninterrupted services from the Land. Notwithstanding the foregoing, Lessee shall have the rig ht to abate Rent in an amount equal to fifty percent (50%) of the costs and expenses incurred by Lessee related to such necessary modifications and/or relocation upon provision of reasonable supporting documentation to Lessee. If both of the foregoing options have been attempted by Lessee and Lessor and proven unsuccessful after good faith efforts to achieve the same, then either party may thereafter exercise the right to terminate this Lease.
(c) In the event of termination for any reason, Lessee shall remove all Lessee Facilities at its sole cost and expense within ninety (90) days preceding the termination of this Agreement. Lessee shall restore the Land to its original 7 Coyote Reservoir
condition as may be reasonably required by Lessor, reasonable wear and tear and casualty excepted.
13. Destruction or Condemnation. If the Premises or Lessee Facilities are damaged, destroyed, condemned or transferred in lieu of condemnation, Lessee may elect to terminate this Agreement effective as the date of the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to Lessor (or its successor) not later than forty -five (45) days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. In the event the Premises are damaged or destroyed, Lessor shall use reasonable efforts to provide Lessee with a temporary location on the Land, or other property owned or controlled by Lessor, which is suitable for Lessee's operations of a temporary communication facility.
Lessee may operate a temporary communication facility on the temporary location until the Premises and/or Lessee Facilities are restored. In the event a temporary location is not available for such temporar y communication facility, Rent shall abate until the Premises or Lessee Facilities are restored.
14. Insurance:
(a) Lessee shall procure and maintain throughout the duration of this Agreement, the following insurance:
i. Commercial General Liability insurance with a limit of $2,000,000 per occurrence for bodily injury and property damage and $2,000,000 general aggregate. Such insurance shall include the City, its officials, officers and employees as additional insureds as their interests may appear un der this Agreement, and that the insurance is primary and will not contribute with any insurance or self-insurance maintained by the City.
ii. Commercial Automobile liability insurance for allowned, hired or non- owned vehicles in the amount of $2,000,000 combined single limit each accident for bodily injury and property damage.
iii. Workers' Compensation insurance as required by California law with statutory limits and Employer's Liability insurance with limits of $1,000,000 each accident/disease/policy limit. The Workers' Compensation insurance shall contain an endorsement waiving the insurer's right to subrogate against the City, its officials, officers and employees.
(b) Upon receipt of notice from its insurer Verizon will provide the City with thirty (30) days prior written notice of cancellation of any policy required under this Agreement.
(c) All required insurance shall be placed with insurers reasonably acceptable to the Lessor with current A.M. Best ratings of no less than A, VII.
(d) Lessee shall furnish the Lessor with executed certificates of insurance which bear evidence of compliance with the insurance required herein.
(e) Nothing in this section shall be construed as limiting in any way, the Indemnification and Hold Harmless clause contained herein in Paragraph 15 8 Coyote Reservoir
or the extent to which Lessee may be held responsible for payments of damages to persons or property.
15. Indemnities. As a major inducement and in consideration of this Lease and the permission herein granted, Lessee agrees to defend, indemnify and hold harmless Lessor, its officials, officers, agents and employees from any claims of liability for personal injury or damage to property to the extent t hat such claims arise out of the activities and operations of Lessee or its officers, agents or employees on the Land, whether such activities or operations are authorized by this Lease or not. Further, Lessee shall pay for any and all damage, loss or thef t to the property of Lessor to the extent such damage, loss or theft arises out of the activities and operations of Lessee or its officers, agents and employees on the Land. Lessor shall not be responsible for any loss or damage to any property owned or controlled by Lessee that is situated on the Land except to the extent caused by the sole negligence or willful misconduct of Lessor and its agents and employees. The provisions of this Paragraph 15 do not apply to any claims of liability for personal injury or damage to property to the extent such claims are attributable to the negligence or willful misconduct of Lessor or any of its elected officials, officers, agents, volunteers or employees. Nothing herein shall affect, impact or impair the applicability of any immunities to which Lessor is legally entitled.
16. Assignments and Subletting. A proposal for subletting must be presented to the Lessor for approval. Each proposal must be separate and individual, and subject to concurrence between the Lessor and sublessee. Lessee may not assign, or otherwise transfer all or any part of its interest in this Agreement or in the Premises without the prior written consent of Lessor. Notwithstanding anything to the contrary contained in this Agreement, this Agreement may be sold, assigned or transferred by the Lessee without any approval or consent of the Lessor to the Lessee's principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of Lessee's assets in the market defined by the FCC in which the Land is located by reason of a merger, acquisition or other business reorganization. Upon a permitted assignment, Lessee shall be relieved of all liabilities and obligations hereunder and Lessor shall look solely to the assignee for performance under this Lease and all obligations hereunder. In addition, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without Lessor's consent its interest in this Agreeme nt to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. No change of stock ownership or control of Lessee shall constitute an assignment hereunder. Lessor may assign this A greement upon written notice to Lessee subject to the assignee expressly assuming all of Lessor's obligations herein in writing, including, but not limited to, those set forth in Paragraph 8 above.
17. Warranty of Title and Quiet Enjoyment . Lessor warrants t hat: (i) Lessor has full right to make and perform this Agreement; (ii) Lessor covenants and agrees with Lessee that absent any uncured default beyond any applicable grace or cure period, Lessee may peacefully and quietly enjoy the Premises, and (iii) execution and performance of this Lease will not violate any laws, ordinances, covenants, or the provisions of any mortgage, lease or other agreement binding on Lessor. Lessor agrees to indemnify
9 Coyote Reservoir
and hold harmless Lessee from any and all claims on Lessee's leasehold interest as a result of a breach of the foregoing.
18. Repairs. Lessee shall not be required to make any repairs to the Premises, the Land or any improvements thereon other than those installed by Lessee unless such repairs shall be necessitated by reason of the default or neglect of Lessee. Except as set forth in Paragraph 7(b) above, upon expiration or within ninety (90) days after the termination hereof, Lessee shall restore the Premises to the condition in which it existed upon execution hereof, reasonable wear and tear and loss by casualty or other causes beyond Lessee's control accepted. Lessee will be responsible for repairing and maintaining the Lessee Facilities in a proper operating and reasonably safe condition; provided, however, that if any such repair or maintenance is required due to the act of Lessor, its agents or employees, Lessor shall reimburse Lessee, as mutually agreed, for the reasonable costs incurred by Lessee to restore the damaged areas to the condition which existed immediately prior thereto. Lessor will maintain and repair all other portions of the Land and any improvements thereon in a proper operating and safe condition.
19. Hazardous Substances.
(a) Lessee agrees that it will not use, generate, store or dispose of any Hazardous Material, on, under, about or within the Land in violation of any law or regulation. If Lessor becomes aware of a release of Hazardous Materials on Lessor's Land, unless said release is by Lessee, Lessor shall (1) notify Lessee of such release of Hazardous Materials; and (2) promptly take any remedial action required by appropriate government authorities. Lessor will not, and will not permit, to the best of its ability, any third party to use, generate, st ore or dispose of any Hazardous Material on, under, about or within the Land in violation of any law or regulation.
(b) Lessee, at its sole cost and expense, shall comply with all applicable laws relating to the storage, use and disposal of hazardous, toxic or radioactive matter used, stored, brought onto, handled, generated or removed from the Premises by Lessee, including, without limitation, those materials identified in Sections 66680 through 66685 in Title 22 of the California Administrative Code, Division 4, chapter 30 (Title 22) as amended from time-to-time (collectively, the "Hazardous Materials"), and including, but not limited to, those laws and regulations promulgated pursuant to CERCLA, RCRA, OSHA, Cal - OSHA, Proposition 65, the Hazardous Waste Control Act, the Underground Storage of Hazardous Materials Release Act, the Hazardous Materials Release Response Plans and Inventory Act, the Hazardous Substance Account Act, the Porter Cologne Water Quality Control Act and implementing regulations published by the Environmental Protection Agency, Water Resources Control Board and Department of Health Services. On the Commencement Date, and at Lessor's written request, and not more frequently than annually thereafter, Lessee shall provide to Lessor an itemized list of categories of Hazardous Materials, if any, currently in use by Lessee in connection with its operations on the Premises. Lessee shall conduct all monitoring activities required by applicable federal, state and local laws or regulations with respect to Lessee's use of Hazardous Materials on the 10 Coyote Reservoir
Premises, and shall, at its own cost and expense, comply with all posting requirements of Proposition 65 or any other similarly enacted law, ordinance or regulation applicable to Lessee's use of the Premises. In addition, in the event of any complaint or governmental inquiry which is attributable to acts or omissions of Lessee on the Premises, Lessor may require Lessee, at Lessee's sole cost and expense, to conduct specific, but reasonable, monitoring or testing activities with respect to Hazardous Materials stored, generated, used or brought onto the Premises by Lessee; provided, however, that Lessee shall be required to perform only those monitoring and/or testing activities which are required by applicable federal, state, and local laws. Lessee's monitoring programs shall be in compliance with such applicable laws. Lessee shall be solely responsible for and shall defend, indemnify and hold Lessor and Lessor's agents and employees free and harmless from and against all claims, costs and liabilities, including reasonable attorneys' fees and costs, arising solely out of Lessee's storage, use or disposal of Hazardous Materials on the Premises.
(c) Lessor represents that, to the best of Lessor's knowledge, the Premises have not been used for the generation, storage, treatment or disposal of Hazardous Materials. In addition, Lessor represents that no Hazardous Materials or underground storage tanks are located on or near the Premises.
Notwithstanding any other provision of this Lease, Lessee relies upon the representations stated herein as a material inducement for entering into this Lease. Lessor covenants not to sue Lessee with respec t to any liability related to a release or exacerbation of Hazardous Materials on the Land that is not caused by Lessee.
20. Lessee Defaults.
(a) Defaults. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee, sometimes referred to herein as an "Event of Default."
1. The vacating or abandonment of the Premises by Lessee; provided, however, Lessor acknowledges that Lessee's use of the Premises will involve the operation of automatic communications equipment which does not require the presence of persons on the Premises for such equipment's operation, that no persons will be present on the Premises, except in order to perform maintenance and repair activities on a periodic basis, and that the absence of persons from the Premises shall not constitute vacation or abandonment of the Premises under the Lease.
2. The failure by Lessee to make any payment of Rent or any other payment required to be made by Lessee hereunder, as and when due, where such failure shall continue for a period of fifteen (15) days after written notice thereof is received by Lessee from Lessor.
3. The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee and other than in the event of a default in the payment of Rent, where such 11 Coyote Reservoir
failure shall continue for a period of thirty (30) days after written notice thereof is received by Lessee from Lessor; provided, however, that if the nature of Lessee's default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commences such cure within said 30- day period and thereafter diligently prosecutes such cure to completion.
4. (i) The making by Lessee of any general arrangement or assignment for the benefit of creditors; (ii) Lessee becomes a "debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premi ses or of Lessee's interest in this Lease, where possession is not restored to Lessee within sixty (60) days, or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee's assets located at the Land or of Lessee's interest in this Lease where such seizure is not discharged within sixty (60) days. Provided, however, in the event that any provision of this Paragraph 20(a) (4) is contrary to any applicable law, such provisions shall be of no force or effect. Notwithstanding the foregoing, any appointment, attachment or other transaction allowed pursuant to the provisions of Paragraph 10 and 16 shall not constitute a default of this Agreement.
(b). Remedies. Except as otherwise provided in this Lease, in the event of any such material default or breach by Lessee, Lessor may at any time thereafter, with or without notice or demand and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such default or breach:
1. Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event, Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee's default including, but not limited to, the cost of recovering possession of the Premises; expenses of reletting the Premises, reasonable attorneys' fees, and any real estate commission actually paid; the wor th at the time of award by the court having jurisdiction thereof of the amount by which the unpaid Rent for the balance of the then- current term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves cou ld be reasonably avoided.
2. Maintain Lessee's right to possession in which case this Lease shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event Lessor shall be entitled to enforce all of Lessor's rights and remedies under this Lease, including the right to recover the Rent as it become due hereunder.
3. Pursue any other remedy now or hereafter available to Lessor under the laws or judicial decisions of the state wherein the Land is located. Unpaid 12 Coyote Reservoir
installments of Rent and other unpaid monetary obligations of Lessee under the terms of this Lease shall bear interest from the date due at the maximum rate then allowable by law to non-exempt lenders.
(c) If there occurs an Event of Default by Lessee, Lessor shall not have the right, prior to the termination of this Lease, to re- enter the property and/or remove persons or property from the Land.
(d) Default by Lessor . Lessor shall not be in default unless Lessor fails to perform obligations required of Lessor within a reasonable time, but in no event later than thirty (30) days after written notice by Lessee to Lessor specifying wherein Lessor has failed to perform such obligations; provided, however, that if the nature of Lessor's obligation is such that more than thirty (30) days are required for performance then Lessor shall not be in default if Lessor commences performance within such thirty (30) day period and thereafter diligently prosec utes the same to completion. Such default by Lessor is also sometimes referred to herein as an "Event of Default."
(e) Remedies. In the event of a Lessor default, Lessee may avail itself of any remedies available to it at law and/or equity including, without limitation, the right to terminate this Lease.
(f) Late Charges. Lessee hereby acknowledges that late payment by Lessee to Lessor of Rent and other sums due hereunder will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, if any installment of Rent or any other sum due from Lessee shall not be received by Lessor or Lessor's designee within fifteen (15) business days after such amount shall be due, then, Lessee shall pay to Lessor a late charge equal to six percent (6%) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of late payment by Lessee.
Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee's default with respect to such overdue amount, nor prevent Lessor from exercising any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for three (3) consecutive installments of Rent, then upon notice thereof from Lessor to Lessee, Rent shall automatically become due and payable quarterly in advance, rather than monthly notwithstanding Paragraph 6 or any other provision of this Lease to the contrary.
(g) Lessor's Right to Inspect. Lessee agrees Lessor and the authorized representatives of Lessor shall have the right to enter the Premises at all reasonable times during reasonable business hours, but only following reasonable written or telephonic notice to Lessee and when accompanied by an authorized representative of Less ee for the purpose of inspecting the Premises.
Lessor shall endeavor to minimize any interference with Lessee's business on the Premises, which may be occasioned by such entry Lessee shall have the right to exclude certain of Lessor's agents or guests so l ong as Lessee gives prior written or telephonic notification to Lessor of its good faith reasons for such 13 Coyote Reservoir
exclusions. Lessor shall have the right to enter the Premises for the purpose of preserving persons and/or property in the event of an emergency at any time without prior notice to Lessee; provided, however, in case of any such entry Lessor shall promptly notify Lessee of such entry in writing or telephonically as soon as practicable.
21. Conditions of Installation.
a. To assure that wireless communication systems are as unobtrusive as possible, all wireless communication system poles and antenna shall be placed on poles, as approved by Lessor.
b. Lessee, at its sole expense, shall, upon completion of the installation or upon removal, assure that the Premises are returned to the condition of the Premises prior to installation, except as set forth in Paragraphs 7(b) and 18 above. This includes, but is not limited to, landscaping, grade, lighting and utilities hook-up.
To the extent reasonably feasible, installation and removal shall not disrupt nor interfere with the normal and customary use of Lessor's Land.
c. Subsequent to the installation of the Lessee Facilities, Lessee shall coordinate any other construction activities with Lessor so as to minimize any disturbance to activities on the Property.
d. Lessee shall provide a construction completion bond in the full amount of the estimated construction cost guaranteeing all work, in a form and from a company approved by the City Attorney, to be completed to the reasonable satisfaction of the Lessor and within the defined timelines. This bond shall be posted at the time of the issuance of the building permits and may be removed within sixty (60) days after completion of installation of the Lessee Facilities.
22. Removal. Should Lessee fail to remove the Lessee Facilities from the Land within ninety (90) days after the expiration or earlier termination of this Agreement, Lessor may remove and store the Lessee Facilities at Lessee's sole expense. If Lessee does not claim the Lessee Facilities and provided that Lessor has given Lessee and any third party financing entity ninety (90) days prior written notice, the Lessee Facilities shall be deemed abandoned, and Lessee shall not have any additional obligations therefor.
23. Adjacent Property . Lessee agrees to indemnify, defend and hold Lessor harmless from any and all damages of any nature to improvements within or about the Premises to the extent caused by the construction undertaken by Lessee upon or to the Premises or of the Lessee Facilities, except to the extent caused by the negligence, willful misconduct or violation of law, or breach of this Lease by Lessor.
24. Wireless Communications Facility Permit Approval Conditions:
a. Lessee recognizes that the frequencies used by the communications facility located at 1550 Parks Road, Fullerton, California may be extremely close to the frequencies used by the City for Public Safety thereon. Any proximity will require extraordinary engineering measures to prevent interference, especiall y in the choice of frequencies and radio ancillary hardware.
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b. At all times, other than during the 24- hour cure period provided in (c) below, Lessee shall not prevent City of Fullerton from having adequate spectrum capacity on City's 800 MHz radio frequency.
c. Before activating its facility, Lessee will submit to a post -installation test to confirm that the facility does not interfere with the City of Fullerton Public Safety radio equipment. This test will be conducted by the Communication Division of the Orange County Sheriff’s Department or a Division - approved contractor at the expense of Lessee.
d. Lessee shall provide a 24 -hour phone number to which interference problems may be reported and will use commercially reasonable efforts to commence resolving all interference complaints pursuant to this Paragraph=within 24 hours.
e. Lessee shall cease operation of any equipment causing interference with City's facilities immediately upon the expiration of the 24 -hour cure period until the cause of the interference is eliminated. Failure to cease such operation shall result in automatic suspension of the Lessee's right to operate under this Agreement.
f. Lessee will provide a "single point of contact" in its Engineering and Maintenance Departments to ensure continuity on all interference issues. The name, telephone number, fax number and e -mail address of that person shall be provided to Lessor's designated representative upon activation of the facility.
g. Lessee shall insure that Lessee or other user(s) shall comply with the terms and conditions of this Agreement.
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25. Landscaping. The parties acknowledge and agree that the Governmental Approvals require the installation of certain landscaping on the Land during the Term. Accordingly, Lessee will install around the perimeter of the Premises landscaping ("Landscaping") according to a plant pallet as approved by the Fullerton Parks and Recreation Department and as substantially described and depicted on Exhib it B; Lessor understands and agrees that connections to Lessor's existing irrigation system and existing water supply may be required in order to maintain the Landscaping. Once installed, the Landscaping shall become the property of Lessor, subject to the maintenance requirements set forth in the Governmental Approvals to be performed by Lessee at Lessee's sole cost. Lessor shall be responsible for watering and Lessee shall be responsible for maintaining and replacing the Landscaping for the period required pursuant to the Governmental Approvals at no cost to Lessor.
26. Miscellaneous:
a. This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties.
b. If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
c. This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties.
d. 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:
Director of Community & Economic
Development
City of Fullerton
303 W. Commonwealth Avenue
Fullerton, California 92832
With a copy to:
Public Works Director - Engineering Division
City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832
Los Angeles SMSA Limited Partnership
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
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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.
(e) This Agreement shall be governed by the internal laws of the State of California.
(f) Lessor acknowledges that a Memorandum of Agreement in the form annexed hereto as Exhibit D will be recorded by Lessee in the official records of the County of Orange where the Land is located. In the event the Land is encumbered by a mortgage or deed of trust, Lessor agrees to obtain and furnish to Lessee a non- disturbance and atonement instrument in form reasonably acceptable to Lessee for each such mortgage or deed of trust.
(f) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay condition or withhold its approval or consent.
(h) All Riders and Exhibits annexed hereto form material parts of this Agreement.
(i) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original.
0) It is agreed and understood that this Lease contains all agreements, promises and understandings between Lessor and Lessee, and no verbal or oral agreements, promises or understandings shall or will be binding upon either Lessor or Lessee, and any addition, variation or modification to this Lease shall be void and ineffective unless made in writing and signed by the parties hereto.
(k) The parties agree that all of the provisions hereof shall be construed as both covenants and conditions, the same as if the words importing such covenants and conditions had been used in each separate paragraph.
(I) The language of all of the parts of this Lease shall be construed simply and according to its fair meaning, and this Lease shall never be construed either for or against either party.
(m) If either party institutes any action or proceeding in court to enforce any provisions hereof, or any action for damages by reason of any alleged breach of any of the provisions hereof, then the prevailing party in any such action or proceeding shall be entitled to receive from the lost party such amount as the court may adjudge to be reasonable attorneys' fees for the services rendered to the prevailing party, together with its other reasonable litigation costs and expenses.
(n) In addition to the other remedies provided for in this Lease, Lessor and Lessee shall be entitled to immediate restraint by injunction of any violation of any of the covenants, conditions or provisions herein contained if deemed appropriate by a court of competent jurisdiction.
(o) The captions of the paragraphs of this Lease are for convenience of reference only and shall not affect the interpretation of this Lease or limit or amplify any of its terms or provisions.
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(p) This Lease is not and shall not be binding on either party until and unless it is fully executed by both parties.
[Signature page follows]
18 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
LESSOR:
City of Fullerton, a municipal corporation
By: Date:
Acting City Manager, Steve Danley
Tax ID#: 95-6000711
APPROVED AS TO FORM:
By: Date:
City Attorney
LESSEE:
Los Angeles SMSA Limited Partnership,
d/b/a Verizon Wireless
By: AirTouch Cellular Inc., its General Partner
By:
Name:
Title:
Date:
EXHIBIT A
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
LEGAL DESCRIPTION OF LAND
20 EXHIBIT B
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
LEGAL DESCRIPTION OF PREMISES
21 EXHIBIT C
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
SITE PLAN WITH EQUIPMENT DETAIL
22 EXHIBIT D
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
MEMORANDUM OF LEASE