TELECOMMUNICATIONS SITE LEASE AGREEMENT ( GROUND)
This Telecommunications Site Lease Agreement ( Ground) [ the " Agreement" or the " Lease"] is entered into this ~Z day of . r„ nP , 2003, between SPRINT PCS ASSETS LLC, ( LESSEE"), and the CITY OF FULLERTON (" LESSOR").
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
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 Hills Park. The land is more particularly described in Exhibit A attached hereto. LESSOR hereby leases to LESSEE and LESSEE leases from LESSOR, approximately 575 square feet of the Land and necessary rights of access to and installation of utilities, if any, ( the "Premises") as described in Exhibit B attached hereto.
2. Use.
Premises may be used by the LESSEE solely for the purpose of installation and operation of the wireless communications system ( LESSEE's Facilities) specifically shown on Exhibit C attached hereto. LESSEE may use the premises for any lawful activity in connection with the provision of wireless communications services by the LESSEE. Additions or expansions of the system will require prior written consent of LESSOR. LESSEE has the right to install a personal communications service system facility (" PCS") as further described on Exhibit C. In connection therewith, LESSEE has the right in accordance with the approved plans, 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. 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. Nothing herein constitutes a discretionary approval or precommits 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 following the full execution of this Agreement to enter upon the Land for the purpose of: making appropriate engineering and boundary surveys, inspections, soil test borings, other reasonably necessary tests and constructing the LESSEE Facilities ( as defined in Paragraph 6(a) below).
4. Term.
The term of this Agreement shall be ten ( 10) years commencing on the date LESSEE begins construction of the LESSEE Facilities ( as defined in Paragraph 6(a) below) or no later than two ( 2) months following execution of this Agreement (" Commencement Date"), whichever occurs first, and terminating on the tenth anniversary of the Commencement Date ( the " term") unless otherwise terminated as provided in Paragraph 10. LESSEE shall have the right to submit a written request for a renewal of the lease term for an additional ten- year (10) term ( the " Renewal"), one hundred eighty 180) days prior to lease termination.
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5. Rent.
a) Within fifteen ( 15) business days of the Commencement Date and on the first day of each calendar month thereafter, LESSEE shall pay to LESSOR as rent TWO THOUSAND FOUR HUNDRED DOLLARS ($ 2400.00) (" Rent") per month. Rent for any fractional month at the beginning or at the end of the Term or Renewal Term shall be prorated. Rent shall be payable to: LESSOR: City of Ful- erton, 303 West Commonwealth Avenue, Fullerton, CA 92832, Attention: Accounts Receivable. b) The Rent due hereunder will be adjusted annually upward by four percent ( 4%) over the rent payable for the twelve- month period immediately preceding said adjustment and payable on the first day of the month in which each anniversary of the Commencement Date occurs throughout the Term and each Renewal Term.
c) The Rent will also be subject to review using current market value analyses, at every five- year 5) interval within each ten- year term, including the initial term commencing upon execution of this agreement. The rent may be subject to renegotiation by the LESSOR at these five- year (5) intervals, with a minimum increase of four percent as shown in Paragraph 5(b) above. d) As additional payment, LESSEE shall make cone- time payment concurrent with the execution of this agreement by the LESSEE in the amount of TWO THOUSAND DOLLARS ($ 2, 000) for Engineering costs for the review and implementation of the conditions and terms of his lease.
Conditions and terms of this Lease also include compliance, at the Lessee's expense, with all approvals, license, and permit requirements.
6. Facilities; Utilities; Access.
a) 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 Lease, upon termination of this Agreement, LESSEE shall not be required to remove any foundation more than one ( 1) foot below grade level. b) 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 permits as may be reasonably required by said utility companies to provide such service to the Premises, including the permission to LESSEE or to the servicing utility company at no cost to LESSEE or such company, of access rights in, over, across or through the Land as required by such servicing utility company to provide utility services as provided herein. Any permitted alignment necessary for such power or other utilities will be at a location acceptable to LESSOR and the servicing utility company. c) LESSEE, LESSEE's employees, and authorized contractors, or subcontractors, shall have access, subject to reasonable public safety rules and site security considerations, 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 for pedestrian and vehicular ingress and egress across that portion of the Land described in Exhibit B subject to reasonable public safety rules and site security considerations which may be adopted by the LESSOR from time- to-time.
d) LESSEE shall obtain regular and customary land use approval and the necessary permits, including, without limitation, conditional use permits if otherwise necessary, for any and all uses of the premises by LESSEE including, without limitation, the construction of the LESSEE Building, 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.
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7. Interference.
a) LESSEE shall operate the LESSEE Facilities in a manner that will not cause 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 and are operating the same frequencies and in the same configuration as on such date. All operations by LESSEE shall be in compliance with all Federal Communications Commission (" FCC") requirements. Upon LESSOR's request, and no more than annually, LESSEE shall cause to be prepared and delivered to LESSOR, at LESSEE's sole expense, a report from an independent laboratory or engineering consultant the identity of which must be approved by LESSOR, demonstrating substantial actual compliance with any applicable standards governing wireless telecommunications facilities promulgated by the FCC. Without limiting the foregoing, in the event LESSOR fails to comply with this paragraph, LESSEE may terminate this Agreement without liability.
b) Subsequent to the date of this Lease, LESSOR shall not permit itself, its other lessees or licensees to install new equipment on the Land if such equipment will cause interference with LESSEE's existing operations. Except as provided in Paragraph 22, LESSOR shall not consider for final approval any new requests to share the use of a site presently occupied by another Lessee ( or Lessees) without documented concurrence / approval from the LESSEE currently on the subject Land, which concurrence/approval shall not be unreasonably withheld. Without limiting the foregoing and in addition to any other remedies available to LESSEE pursuant to law or equity, in the event LESSEE fails to comply with this paragraph, LESSOR may terminate this Agreement without liability. 8 Taxes.
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 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 as additional rent any increases in real property taxes and assessments levied against the Land solely as a result of the improvements constructed by LESSEE on the Premises. LESSEE's responsibility pursuant to this Section 8 shall be limited to the taxes hereinabove allocated to LESSEE (" Taxes") assessed for tax periods during the Term and any Renewal 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.
9. 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 with LESSOR's consent.
b) LESSOR acknowledges that LESSEE may from time to time enter into 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 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.
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10. 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 construction and operation of the LESSEE Facilities, provided the LESSEE utilized 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. 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 facility interferes with a Fullerton City Council approved public project 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 365 days' written notice to complete system modifications on the existing site, to relocate, or to terminate the lease, any of which shall be at the expense of the LESSEE. LESSOR will attempt to provide reasonable accommodations on the existing site or to consider an alternate location. In the event that alternative modifications or relocation site cannot be agreed upon, the lease will be terminated effective on the 365th day after a provision of notice.
c) In the event of termination or expiration for any reason, LESSEE shall remove all LESSEE Facilities at its sole costs and expense within sixty ( 60) days preceding the termination of this agreement. LESSEE shall restore the Land to its original condition as may be reasonably required by LESSOR.
11. 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.
12. Insurance.
LESSEE shall procure and maintain throughout the duration of this Agreement, insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the LESSEE's operations, occupancy of, and use of the leased premises. LESSEE shall provide current evidence of the required insurance in a form acceptable to the LESSOR and shall provide replacement evidence for any required insurance, which expires prior to the completion, expiration or termination of this Agreement.
Nothing in this section shall be construed as limiting in any way, the Indemnification and Hold Harmless clause contained herein in Paragraph #13 or the extent to which LESSEE may be held responsible for payments of damages to persons or property.
LESSEE shall maintain commercial general liability insurance coverage in a form at least as broad as ISO Form # CG 001 ED. 11/ 88, with a limit of not less than $ 2, 000,000 each occurrence. If such insurance contains a general aggregate limit, it shall apply separately to the Agreement or shall be twice the required occurrence limit. Any deductible or self- insured retention must be declared to and approved by the LESSOR.
The required insurance policies shall contain or be endorsed to contain the following provisions:
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S:\ EnglneeringlSandyP\WOrd\ sprlnt• cayote• Lease-Agr- flnal.doc a) The LESSOR, its elected or appointed officials, officers, employees, and volunteers are to be covered as insureds with respect to liability arising out of LESSEE's operation or the ownership, occupancy, maintenance or use of the leased premises; or with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the LESSEE. The coverage shall contain no special limitations on the scope of its protection afforded to the LESSOR, its officials, officers, employees and volunteers.
b) This insurance shall be primary insurance as respects the LESSOR, its officers, employees and volunteers and shall apply separately to each insured against whom a suit is brought or a claim is made. Any insurance or self- insurance maintained by the LESSOR its officers, employees and volunteers shall be excess of this insurance and shall not contribute with it. c) The policy required by this clause shall be endorsed to state that coverage shall not be canceled, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the LESSOR
All required insurance shall be placed with insurers acceptable to the LESSOR with current BEST'S ratings of no less than B+, Class X. All insurers shall be licensed by or hold admitted status in the State of California. At the sole discretion of the LESSOR, insurance provided by non- admitted or surplus carriers with a minimum BEST'S rating of no less than A-, Class X may be accepted if LESSEE evidences the requisite need to the sole satisfaction of the LESSOR.
LESSEE shall furnish the LESSOR with certificates of insurance which bear original signatures of authorized agents and which reflect insurers' names and addresses, policy numbers, coverage, limits, deductibles and self- insured retentions. Additionally, LESSEE shall furnish certified copies of all policy endorsements required herein. All certificates and endorsements must be received and approved by LESSOR before LESSEE occupies premises. The LESSOR reserves the right to require at any time complete, certified copies of any or all required insurance policies and endorsements. In addition, the LESSOR reserves the right to amend any of these insurance requirements during the term of this lease, but not more often than every two years. 13 Indemnities.
As a material inducement and in consideration of this Lease and permission herein granted, LESSEE agrees to defend, indemnify and hold harmless LESSOR, its elected officials, officers, agents, volunteers and employees from any claims of liability for personal injury or damage to property to the extent that such claims arise out of the activities and operations of LESSEE or its officers, agents or employees on LESSOR's Land, whether such activities or operations are authorized by this LEASE or not. Further, LESSEE shall pay for any and all damage, loss or theft 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 LESSOR's 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. The provisions of this Article do not apply to any claims of liability for personal injury or damage to property to the extent such claims are attributable to the sole negligence or willful misconduct of LESSOR or any of its elected officials, officers, agents, volunteers or employees.
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14. Assignments and Subletting.
Assignees and sublessees shall enter a separate agreement(s) with LESSOR on rent, terms and conditions, which may or may not be consistent with this agreement. 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; provided, however, that LESSEE may sublease or assign its interest to its parent company, any subsidiary or affiliate or to any successor- in-interest or entity acquiring fifty- one percent ( 51 %) or more of its stock or assets, subject to any financing entity's interest, if any, in this Agreement as set forth in Paragraph 9 above. LESSOR may assign this Agreement upon written notice to LESSEE subject to the assignee assuming all of LESSOR's obligations herein, including, but not limited to, those set forth in Paragraph 9 above. Notwithstanding anything to the contrary contained in this Agreement, LESSEE may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Agreement 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 guarantees thereof.
15. Warranty of Title and Quiet Enioyment.
LESSOR warrants that: ( i) LESSOR has full right to make and perform this Agreement; and ( ii) LESSOR covenants and agrees with LESSEE that upon LESSEE paying the Rent and observing and performing all the terms, covenants and conditions on LESSEE's part to be observed and performed, LESSEE may peacefully and quietly enjoy the Premises. LESSOR agrees to indemnify and hold harmless LESSEE from any and all claims on LESSEE's leasehold interest.
16. Re airs
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 6(a) above, upon expiration or termination hereof, LESSEE shall restore the Premises to the condition in which it existed upon execution hereof, as may reasonably be required by LESSOR ( as also required in paragraph 10c), reasonable wear and tear and loss by casualty or other causes beyond LESSEE's control excepted. 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 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 reasonably safe condition.
17. 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, store or dispose of any Hazardous Material on, under, about or within the Land in violation of any law or regulation.
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S:\ Englneering\SandyP\ Word\sprint- coyote• Lease-Agr- flnal.doc 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 annually thereafter at LESSOR's request, 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 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.
18. 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 there will be extended periods of time during the term of the Lease when no persons will be present on the Premises, 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. In the event that LESSOR serves LESSEE with a Notice to Pay Rent or Quit pursuant to the applicable Unlawful Detainer Statutes, such Notice to Pay Rent or Quit shall also constitute the notice required by this subparagraph.
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 failure shall continue for a period of thirty (30) days after written notice thereof is received by LESSEE from LESSOR.
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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 Premises 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 on 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 18. 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 Paragraphs 9 and 14 shall not constitute 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 Land , reasonable attorneys' fees, and any real estate commission actually paid; the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that LESSEE proves could 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 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 by a court of competent jurisdiction, to re- enter the Land 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-day ( 30) period and thereafter diligently prosecutes 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.
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S:\ Engineering\SandyP\ Word\sprint- coyote• Lease•Agr- flnal.doc 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, not later than five ( 5) business days after LESSEE's receipt of notice from LESSOR, 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 5 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 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 LESSEE 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 long as LESSEE gives prior written or telephonic notification to LESSOR of its good faith reasons for such 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.
19. Conditions of Installation.
a) 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 6(a) and 16 above. This includes, but is not limited to, landscaping, grade, lighting and utilities hook-up. Installation and removal shall not disrupt nor interfere with the normal and customary use of LESSOR's Land.
b) 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 Land. c) LESSEE shall provide a construction completion bond in the full amount of 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.
20. Removal Of Facilities.
Should LESSEE fail to remove the LESSEE Facilities from the Land within sixty (60) days of 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 sixty (60) days' prior written notice, the LESSEE Facilities shall be deemed abandoned, and shall immediately become the sole property of LESSOR.
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S:\ Engineering\SandyP\ Word\sprint- coyote• Lease•Agr• final.doc 21 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 resulting from or arising out of any construction undertaken by LESSEE upon or to the Premises or of the LESSEE Facilities.
22. Wireless Communications Facility Permit Approval Conditions:
a) LESSEE recognizes that the frequencies used by the cellular facility located at Coyote Hills Park may be extremely close to the frequencies used by the City of Fullerton for Public Safety. Any proximity will require extraordinary engineering measures to prevent interference, especially in the choice of frequencies and radio ancillary hardware.
b) At all times, other than during a 24- hour cure period, LESSEE shall not prevent City of Fullerton from having adequate spectrum capacity on City's 800 MHz radio frequency, as determined by the City. c) Before activating its facility, LESSEE will submit to apost- 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 sole expense of LESSEE.
d) LESSEE shall provide a 24- hour phone number to which interference problems may be reported, and will resolve all interference complaints within 24 hours. This condition will also apply to all existing LESSEE facilities in the City of Fullerton.
e) LESSEE shall cease operation of any
immediately upon the expiration of the 24- hour
eliminated. Failure to cease such operation shall
operate under this agreement.
facility causing interference with City's facilities
cure period until the cause of the interference is
result in automatic suspension of LESSEE's right to
f) LESSEE will provide a " single point of contact" in its Engineering and Maintenance Services Departments to insure continuity on all interference issues. The name, telephone number, fax number and a- 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.
23. 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:
Sprint Assets LLC
S: 1EnglneeringlsandyPlWord\sprlnt• coyote- Lease-Agr- final.doc LESSOR:
City of Fullerton
Director of Engineering
303 W. Commonwealth Ave.
Fullerton, CA 92832
LESSEE:
Sprint PCS Assets LLC
15500 W. 113thSt.
Lenexa, Ks. 66219
Mailstop: KSLNXC0201
Attn: Dir., Nat'I. Prop. & Lease Mgmt
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. 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 anon- disturbance and attornment instrument in a form reasonably acceptable to LESSEE for each such mortgage or deed of trust.
g) 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.
j) 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. p) This Lease is not and shall not be binding on either party until and unless it is fully executed by both parties.
Sprint Assets LLC
S: 1Englneering\SandyPlWordlSprlnt- coyote• Lease•Agr- flnal.doc IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
LESSOR: City of Fullerton
By:~~%~
Don Bankhead
LESSEE: Sprint PCS Assets, LLC
A Delaware limited liability company
By:
Mayor, City of Fullerton
Date: ~°-/~ v3
APPRO D AS TO C NTENT:
Robert Hodso
Director of Engineering
APPROVED AS TO FORM
cam ~~
Richard . Jones
City Attorney
Title:
Date: -`~'~~ D~
Tax ID#:
Sprint Assets LLC
S:\ Engineering\SandyP\ Wordlsprint• coyote• Lease•Agr- Tfnal.doc
EXHIBIT A
To
TELECOMMUNICATIONS SITE LEASE AGREEMENT ( GROUND)
DESCRIPTION OF OWNER'S PROPERTY
Site Name: Coyote Hills Park ( APN: 288- 122-051 Site I. D. No.• OG54XC437-B Description of Owner's Property:
The real property situated in the City of Fullerton, County of Orange, State of California, more particularly described as follows:
Parcel 1 of Parcel Map 79- 456 per map filed in Book 134, Pages 47 and 48 of Parcel Maps in the Office of the County recorder of said Orange County, California.
Owner Initials
J
Sprint Initials
Sprint Assets LLC
S:\ Englneering\SandyP\ Wordlsprlnt-coyote- Lease-Agr- flnal.doc
EXHIBIT B
To
TELECOMMUNICATIONS SITE LEASE AGREEMENT ( GROUND)
DESCRIPTION OF SPRINT'S PREMISES
Site Name: Coyote Hills Park ( APN: 288- 122-05) Site I D No • OG54XC437-B Site Survey Attached Consisting of 3 Pages
Owner Initials
Sprint Initials
Sprint Assets LLC
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EXHIBIT C
To
TELECOMMUNICATIONS SITE LEASE AGREEMENT ( GROUND)
DESCRIPTION OF SPRINT'S SITE
Site Name: Covote Hills Park ( APN: 288- 122-051 Site I D No • OG54XC437-B Site Plans Attached Consisting of 8 Pages
Owner Initials
Sprint Initials
Sprint Assets LLC
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EXHIBIT D
To
TELECOMMUNICATIONS SITE LEASE AGREEMENT ( GROUND)
DESCRIPTION OF SPRINT'S SITE
Site Name: Coyote Hills Park ( APN: 288- 122-051 Site I D No • OG54XC437-B
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT is made and entered into as of 2003, by and between the City of Fullerton (" Owner") and Sprint PCS Assets LLC, a Delaware limited liability company (" Sprint")
WITNESSETH:
The Owner hereby leases to Sprint and Sprint hereby leases from Owner a portion of that certain real property ( the " Property") in the State of California, County of Orange, City of Fullerton, a legal description of which is described in Exhibit " A", attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded PCS Site Agreement by and between Owner and Sprint dated , 2003, and incorporated herein by reference ( the " Agreement") for an initial term of ten ( 10) years, and one subsequent extension term of ten ( 10) years, pursuant to the Agreement. The Agreement provides for rights of access to the property and to electrical and telephone facilities serving the Property.
IN WITNESS WHEREOF, the parties have executed this memorandum as of the day and year first written above.
SPRINT: SPRINT PCS ASSETS LLC,
A Delaware limited liability company
OWNER: CITY OF FULLERTON
By:
Its: Regional Director of Site Development
By:
Its:
DO NOT SIGN - INITIAL ONLY
Owner Initials•
Sprint Initials:
Sprint Assets LLC
S: 1EnaineerinalSandvPlWordlsnrint- counts- Page ~ 6 Of ~ 7 Lease- Aor-final. dnc
EXHIBIT A
Legal Description)
The real property situated in the City of Fullerton, County of Orange, State of California, more particularly described as follows:
Parcel 1 of Parcel Map 79- 456 per map filed in Book 134, Pages 47 and 48 of Parcel Maps in the Office of the County recorder of said Orange County, California.
December 17, 2002 Coyote Hills ParWPCS Site
Sprint Assets LLC
S: 1EnglneeringlSandyPlWordlsprlnt-coyote- Lease-Agr- flnal.doc