1 Richman Park/MDG# 5000083743
Telecommunication Site Lease Agreement
Verizon Wireless – Richman Park (Richman Park)
This Telecommunications Site Lease Agreement (Ground) (the “Agreement” or the “Lease”) is entered into this ________ day of ________________________, 2024, between LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership d/b/a Verizon Wireless, with principal offices at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 (“Lessee”), and the CITY OF FULLERTON, a municipal corporation (“Lessor”).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Premises.
(a) 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 Richman Park, located at 711 South Highland Avenue and known as Assessor Parcel Number 032-190-08. 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 approximately twenty feet (20’ ) by fourteen feet (14’ ) and containing approximately two hundred eighty (280) square feet of the Land, for the installation, operation and maintenance of Lessee’ s equipment and additional ground space sufficient for an antenna structure, and (ii) necessary access and encroachments for utility purposes (collectively, the “Premises”) as described in Exhibit B and shown on Exhibit C attached hereto.
(b) Should Lessee request to expand the Premises for the Lessee Facilities (as defined in Paragraph 6(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 in writing. Expansion of the Premises is subject to the approval of the City of Fullerton.
2. Use. The Premises may be used by Lessee for any lawful activity in connection with the provision of wireless communications services by 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 discretionary 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. Term. The term of this Lease shall be five (5) years ( “Initial Term”) commencing on the first day of the month in which 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, and terminating on the fifth anniversary of the Commencement Date and shall be automatically extended 2 Richman Park/MDG# 5000083743
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 11 below.
4. 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 fo r 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) months 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.”
5. Rent/Payments.
(a) On the first day of each calendar month commencing on the Commencement Date, Lessee shall pay to Lessor in advance an annual rental payment (“Rent”) for the Premises of Fifty -Seven Thousand Nine Hundred Sixty -Three and thirty -three cents ($56,963.33) Ren t shall be payable to: Lessor: City of Fullerton, 303 West Commonwealth Avenue, Fullerton, CA 92832, Attn: Accounts Receivable. The initial Rent payment shall be delivered by Lessee no later than ninety (90) days after the Commencement Date.
(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 is subject to all permitting and approvals as well as associated fees for this project.
(d) L essee shall pay to Lessor a one-time, lump sum payment (“Improvement Payment”) in the amount of Fifteen Thousand Dollars ($15,000) for the installation of certain public improvements within the City of Fullerton, as determined by Lessor in its sole discretion (“City Improvements ”). Lessor acknowledges and agrees that notwithstanding Lesse’s payment of the Improvement Payment, Lessor shall be solely responsible for the installation of the City Improvements and shall thereafter be solely liable for the maintenance, repair and replacement of the City Improvements. Upon Lessee’s payment of the Improvement Payment, Lessee shall have no obligation to make any further contribution to the cost to construct any other public improvements in connection with this Agreement.
6. Facilities; Utilities; Access.
(a) Lessee has the right to construct telecommunication facilities thereto as more specifically shown and described on Exhibit C (“Lessee Facilities ”) attached hereto. In connection therewith, Lessee has the right in accordance with the plans approved by Lessor, which Lessor shall not 3 Richman Park/MDG# 5000083743
unreasonably withhold, condition or delay and pursuant to Paragraph 10 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. (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 Land 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, to include installation of required service meter (s), 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 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.
7. 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 4 Richman Park/MDG# 5000083743
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 constructed, 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 herein, all new requests to share the use of a site presently occupied by another lessee (or lessees) must include documented concurrence / approval from the lessee(s currently on the desired site.
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 taxes, assessments and deferred taxes levied solely on the Premises or any possessory interest held by Lessee directly related 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 other taxes and assessments imposed by any government entity that are imposed on Lessee and required to be paid by Lessee that are directly attributable to the improvements constructed by Lessee on the Premises or L essee’s use and occupancy of the Premises .
Lessee’s responsibility pursuant to this Paragraph 8 shall be limited to the taxes hereinabove assessed to Lessee ( “Taxes”) 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.
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 without Lessor’s consent. 5 Richman Park/MDG# 5000083743
(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 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.
10. Modifications. 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 Facilities) 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. 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.
11. 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 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 mitigation of such interference is not reasonably possible after good faith consultation between Lessee and Lessor, then Lessor shall 6 Richman Park/MDG# 5000083743
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 relocation 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 right 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 condition as may be reasonably required by Lessor, reasonable wear and tear and casualty excepted.
12. 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 destr oyed, 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 temporary communication facility, Rent shall abate until the Premises or Lessee Facilities are restored.
13. Insurance:
(a) Lessee shall procure and maintain throughout the duration of this Agreement, the following insurance:
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i. Commercial General Liability insurance with a limit of not less than $2,000,000 each occurrence. Such insurance shall include the City, its officials, officers and employees as additional insureds as their interests may appear, and that the insurance is primary and will not contribute with any insurance or self-insurance maintained by the City. ii. Business Automobile liability insurance for allowned, hired or non- owned vehicles in the amount of $2,000,000 per accident. iii. Workers’ Compensation insurance as required by California law with statutory limits and Employer ’s Liability insurance with limits not less than $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 Lessor with current A.M. Best ratings of no less than A-, VII. (d) Lessee shall furnish Lessor with executed certificates of insurance which bear evidence of compliance with the insurance required herein. (e) Nothing in this Paragraph 13 shall be construed as limiting in any way, the Indemnification and Hold Harmless clause contained herein in Paragraph 14 or the extent to which Lessee may be held responsible for payments of damages to persons or property.
14. 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 that 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 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 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 14 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.
15. 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 8 Richman Park/MDG# 5000083743
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 Lessor to 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 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 guaranties thereof. No change of stock ownership or control of Lessee shall constitute an assignment hereunder. Lessor may assign this Agreement 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 Paragraphs 6,7, and 8 above.
16. Warranty of Title and Quiet Enjoyment. Lessor warrants that: (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 and hold harmless Lessee from any and all claims on Lessee’s leasehold interest as a result of a breach of the foregoing.
17. 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 6(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
18. 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 9 Richman Park/MDG# 5000083743
(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. (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 Com mencement 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 Premises, and shall, at its own cost and expense, comply with all posting requirements of Propos ition 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 respect to any liab ility 10 Richman Park/MDG# 5000083743
related to a release or exacerbation of Hazardous Materials on the Land that is not caused by Lessee.
19. 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 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 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 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 19(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 9 and 15 shall not constitute a default of this Agreement. 11 Richman Park/MDG# 5000083743
(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; t he 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 then-current 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) Re-Entry. 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) D efault 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 s uch 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 prosecutes the same to completion. Such default by Lessor is also sometimes referred to herein as an “Event of Default.
(e) R
emedies . 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) Lat
e Charges . Lessee hereby acknowledges that late payment by Lessee to Lessor of Rent and other sums due hereunder will cause Lessor to incur costs 12 Richman Park/MDG# 5000083743
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 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 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 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.
20. 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 6(b) and 17 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 13 Richman Park/MDG# 5000083743
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.
21. 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.
22. 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.
23. Wireless Communications Facility Permit Approval Conditions:
(a) Lessee recognizes that the frequencies used by the communications facility located at 2470 W. Pioneer Avenue, 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, especially in the choice of frequencies and radio ancillary hardware.
(b) 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. If interference is detected, Lessee will be allowed to lower the power during first 4 hours after detection and before shutting down the site completely. If interference is still present after 4 hours of lowered powered, Lessee will be allowed to restore to full power. If interference ceases during the period of lowered powered operation, Lessee will be required to completely shut down power and will have 24 hours to cure interference (“24-hour Cure Period”).
(c) Lessee shall immediately cease operation of any equipment found to be causing interference with City’s facilities, as determined during the 4 hour lowered powered operation period, and said equipment operation will cease 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.
(d) At all times, other than during the 24-hour Cure Period provided in (B) above, Lessee shall not prevent City of Fullerton from having adequate spectrum capacity on City’s 800 MHz radio frequency.
14 Richman Park/MDG# 5000083743
(e) 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.
(f) Lessee will provide a “ single point of contact ” in its Engineering and Maintenance Departments to insure continuity on all interference issues. The name, telephone 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.
21. 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: City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832
Lessee: Los Angeles SMSA Limited Partnership
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
With a copy to: Basking Ridge Mail Hub
Attention: Legal Intake
One Verizon Way
Basking Ridge, New Jersey 07920
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.
15 Richman Park/MDG# 5000083743
(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. (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. (l) 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.
16 Richman Park/MDG# 5000083743
(p) This Lease is not and shall not be binding on either party until and unless it is fully executed by both parties.
[Signatures appear on next page]
17 Richman Park/MDG# 5000083743
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
LESSOR:
City of Fullerton, a municipal corporation
By: _________________________________
Eric Levitt, City Manager
APPROVED AS TO FORM:
Richard D. Jones, City Attorney Date
LESSEE:
Los Angeles SMSA Limited Partnership, a
California limited partnership d/b/a Verizon Wireless
By: AirTouch Cellular Inc., its General Partner
By:
Name:
Title:
Date:
Richman Park/MDG# 5000083743
EXHIBIT A
To
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
LEGAL DESCRIPTION OF LAND
Site Name: Richman Park (Richman Park) Site I.D. No.:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
THE EASTERLY 365 FEET OF THE PORTION OF NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 33, TOWNSHIP 3 SOUTH, RANGE 10 WEST, IN THE
RANCHO SAN JUAN CAJON DE SANTA ANA, IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 7 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE EAST LINE OF SAID NORTHWEST QUARTER OF SOUTHEAST QUARTER OF SECTION 13, SOUTH 0° 38’ 30” WEST 841.50 FEET FROM THE NORTHEAST CORNER THEREOF;
THENCE SOUTH 89° 59’ 20” WEST 1328.82 FEET, MORE OR LESS TO A POINT IN THE
WEST LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 33;
THENCE SOUTH 0° 38’ 10” WEST ALONG SAID WEST LINE, 323.50 FEET TO A POINT; THENCE NORTH 89° 59’ 20” EAST 1328.72 FEET, MORE OR LESS, TO A POINT IN THE EAST
LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 33;
THENCE 0° 38’ 30” EAST ALONG SAID EAST LINE 323.50 FEET, MORE OR LESS TO THE POINT OF BEGINNING.
APN: 032-190-08
Richman Park/MDG# 5000083743
EXHIBIT B
To
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
LEGAL DESCRIPTION OF PREMISES
Site Name: Richman Park (Richman Park) Site I.D. No.:
(See Attached)
Richman Park/MDG# 5000083743
EXHIBIT C
To
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
SITE PLAN WITH EQUIPMENT DETAIL
Site Name: Richman Park (Richman Park) Site I.D. No.:
(See Attached)
Richman Park/MDG# 5000083743
EXHIBIT D
To
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
MEMORANDUM OF LEASE
Site Name: Richman Park (Richman Park) Site I.D. No.:
Prepared by and
When Recorded Return to:
City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832-1775
Attn.: City Clerk
Space Above This Line For Recorder’s Use Only)
APN: 032-190-08
Cell Site No:
Cell Site Name: RichmanPark
County: Orange; State: California
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into as of _____________________________________________________, 20_______, by and between the City of Fullerton, a municipal corporation (“LESSOR” ) and Los Angeles SMSA Limited Partnership, a California limited partnership dba Verizon Wireless, with principal offices located at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 (“LESSEE”).
WITNESSETH:
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor a portion (the “Premises”) of that certain real property (the “Land”) in the State of California, County of Orange, City of Fullerton. The Land is described in Exhibit “A” and the Premises is described in Exhibit “B” and both shown on Exhibit “C”, attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded Telecommunications Site Lease Agreement (Ground) by and between Lessor and Lessee, and incorporated herein by reference (the “Lease”) for an initial term of five (5) years commencing on the earlier of the first day of the month in which Lessee commences construction of its wireless communication facilities, or on the first day of the month which is the seventh (7
th) month following the full execution of the Lease, and will be automatically extended for tthree additional five (5) year terms unless terminated in writing by either party with at least six (6) months notice, unless terminated per the terms of the Lease . The Lease provides
Richman Park/MDG# 5000083743
for rights of access to the Land and to electrical and telephone facilities serving the Land, provided that Lessee, at Lessee’s sole cost and expense installs a separate meter for said utility service to the Land, if no meter currently exists for Lessee’s separate use.
IN WITNESS WHEREOF, the parties have executed this memorandum as of the day and year first written above.
LESSEE: LESSOR:
Los Angeles SMSA Limited Partnership, City of Fullerton, d/b/a Verizon Wireless a municipal corporation
By: AirTouch Cellular Inc., its General Partner
By: By: ____________________________
Name: ___________________________ Ken Domer, City Manager Title: ____________________________
Date:
City of Fullerton,
Approved as to form
_________________________________
City Attorney Date
Richman Park/MDG# 5000083743
LESSEE ACKNOWLEDGMENT
STATE OF )
)
COUNTY OF )
On _____________________________________ before me,
____________________________, personally
appeared__________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________
(typed or printed) (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Richman Park/MDG# 5000083743
LESSOR ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF )
On ___________________________________________ before me, ____________________________, personally
appeared___________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________
Name _____________________________________
(typed or printed) (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Richman Park/MDG# 5000083743
EXHIBIT A
To
MEMORANDUM OF LEASE
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
LEGAL DESCRIPTION OF LESSOR’S PROPERTY (Land)
Site Name: Richman Park (Richman Park) Site I.D. No.:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
THE EASTERLY 365 FEET OF THE PORTION OF NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 33, TOWNSHIP 3 SOUTH, RANGE 10 WEST, IN THE
RANCHO SAN JUAN CAJON DE SANTA ANA, IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 7 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE EAST LINE OF SAID NORTHWEST QUARTER OF SOUTHEAST QUARTER OF SECTION 13, SOUTH 0° 38’ 30” WEST 841.50 FEET FROM THE NORTHEAST CORNER THEREOF;
THENCE SOUTH 89° 59’ 20” WEST 1328.82 FEET, MORE OR LESS TO A POINT IN THE
WEST LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 33;
THENCE SOUTH 0° 38’ 10” WEST ALONG SAID WEST LINE, 323.50 FEET TO A POINT; THENCE NORTH 89° 59’ 20” EAST 1328.72 FEET, MORE OR LESS, TO A POINT IN THE EAST
LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 33;
THENCE 0° 38’ 30” EAST ALONG SAID EAST LINE 323.50 FEET, MORE OR LESS TO THE POINT OF BEGINNING.
APN: 032-190-08
Richman Park/MDG# 5000083743
EXHIBIT B
To
MEMORANDUM OF LEASE
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
LEGAL DESCRIPTION OF PREMISES (Lease Area)
Site Name: Richman Park (Richman Park) Site I.D. No.:
Legal Description Attached Consisting of 1 Page
Richman Park/MDG# 5000083743
EXHIBIT C
To
MEMORANDUM OF LEASE
TELECOMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
SITE PLAN
Site Name: Richman Park (Richman Park) Site I.D. No.:
Site Plan Attached Consisting of 1 Page