ORIGlr~AL
April 1999
PCS SITE AGREEMENT
Site Name: Towngate Park
1. Property and Use. Owner is the owner of the real property and improvements described in Exhibit A C'Property") and hereby leases to Cox PCS Assets, L.L.C., a Delaware limited liability company ("Cox"), the site descn"bed below:
1. Land consisting of approximately 627 square feet,
upon which Cox will construct its equipment base
station and a replacement light pole upon which Cox
will use for tower antenna space ("Light Pole");
Space required for cable runs to connect PCS
equipment and antennas,
in the location(s) on the Property ("Site") shown on Exhibit B together with a non-exclusive easement for access thereto and to the appropriate, in the discretion of Cox, source of electric and telephone facilities. The Site will be used by Cox for the purpose of installing, removing, replacing, maintaining, modifying and operating, at its expense, a personal
communications service system facility C'PCS"), including, without limitation, Light Pole, related antennas; equipment, back-up power sources (including generators and fuel storage tanks), cable, wiring and fixtures and, if applicable, an antenna structure. Cox shall have access to the Site twenty-four (24) hours per day, seven (7) days per week. Cox will use the Site in a manner which willnot unreasonably disturb the occupancy of Owner's other tenants.
Owner agrees to permit Cox ingress and egress to the
Site to conduct such surveys, structural strength. analysis, subsudace boring tests and other activities of a similar nature as Cox may deem necessary, at the sole cost of Cox.
2. 2. Term. The term of this Agreement and any easements granted herein (the "Initial Term") is five (5) years,
commencing on the date C'Commencement Date") both Cox
and Owner have executed this Agreement. This Agreement
will be automatically renewed for four (4) additional terms (each a "Renewal Term") of five (5) years each, unless Cox provides Owner notice of intention not to renew not less than ninety (90) days prior to the expiration of the Initial Term or any Renewal Term.
3. Rent. Until the date which is sixty (60) days after the issuance of a buildingpermit,rent willbe a one-time aggregate payment of One Hundred Dollars ($100.00),the receipt of which Owner acknowledges. Thereafter, rent will be paid in advance in equal monthly installments of One Thousand
. Site I.D. No.: RV-35-XC~94!Q.l
Dollars Tho Hundred Fifty and no/100 ($1,250.qo) (until increased as set forth herein), partial months to be pro-rated.
Rent payable under the Agreement shall be increased annually by three percent (3%) on each anniversary date of the
Commencement Date, i.e. rent will equal the amount of the monthly installment of rent payable during the preceding year increased by three percent (3%).
4. Title and Quiet Possession. Owner represents and agrees (a) that it is the owner of the Site; (b) that it has the right to enter into this Agreement; (c) that the person signing this Agreement has the authority to sign; (d) that Cox is entitled to access to the Site at all times and to the quiet possession of the Site throughout the Initial Term and each Renewal Term so long as Cox is not in default beyond the expiration of any cure period; and (e) that Owner shall not have unsupervised access to the Site or to the PCS equipment.
5. Assi2l1ment/Sublettin2. Cox will not assign or transfer this Agreement, permit a co-location on its pole at the Site or sublet all or any portion of the Site without the prior written consent of Owner, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, Cox shall have the right to sublease or assign its rights under this Agreement to any of its subsidiaries, affiliates or successor legal entities or to any entity acquiring substantially all of the assets of Cox. In the event Cox subleases or permits the co-location of equipment or antenna space within its Site or on its pole to a communications carrier unaffiliated to Cox, the rent due under this Agreement shall increase by an amount equal to Tho Hundred Fifty Dollars ($250.00) for each month the
additional carrier's equipment is located within the Site or on the pole; provided, however, if the Owner enters into a separate lease for ground space with such additional carrier, Owner shall not be entitled to any increased rent by reason of such additional carrier locating antennas, equipment and associated fIXtures and cable runs within Cox's Site.
6. Notices. All notices must be in writing and are effective only when deposited in the U.S. mail, certified and postage prepaid, or when sent via overnight delivery. Notices to Cox are to be sent with reference to the Site Name and J.D. listed above, to 4683 Chabot Drive, Suite 100, Pleasanton, CA 94588 with a copy to Sprint Law Department, 6391 Sprint Parkway,
G:\CLIENTSI1SB15PRINI\Southem CaliCornia\Rivenide\RV-3S-XC-094(D)1l'CS Site Agrccmeul.7.wpd Septcmbe.-19.2001
I
Exhibit B
.' PCS SITE AGREEMENT
April1999 .
Site Name: Towngate Park
Mailstop: KSOPHTOI0I-Z2020, Overland Park, Kansas
66251-2020, Attention: Sprint PCS Real Estate Attorney.
Notices to Owner must be sent to the address shown
underneath Owner'ssignature.
7. Improvements. Cox may, at its expense, make such
improvements on the Site as it deems necessary from time to time for the operation of the PCS. Owner agrees to cooperate with Cox with respect to obtaining any required zoning
approvals or other governmental approvals or permits for the Site and such improvements. Upon termination or expiration of this Agreement, Cox shall remove its equipment and
improvements and will restore the Site to substantially the condition existing on the Commencement Date, except for underground conduit and foundations, ordinary wear and tear and damage by fire or other casualty loss.
8. Compliance with Laws. Owner represents that the Property (including the Site), and all improvements located thereon, are and shall remain in substantial compliance with building, life/safety, disability and other laws, codes and regulations of applicable governmental authorities. Cox will substantially comply with all applicable laws directly relating to Cox's operation of the PCS and the improvements constructed by Cox at the Site.
9. Interference. Cox will resolve technical interference problems with other equipment located at the Site as of the Commencement Date orwithanyequipment that Coxattaches
to the Site at any future date when Cox desires to add
additional equipment to the Site. Owner will not permif or sufferthe installationof anyfuture equipment which (a) results in technical interference problems with Cox's then existing equipment, or (b) encroaches onto the Site.
10. Utilities. Ownerrepresents that utilities adequate for Cox's use of the Site are availl1ble.Cox will pay for all utilities used by it at the Site. Owner will cooperate with Cox in Cox's efforts to obtain utilities from any location provided by Owner or the servicing utility, including signing any easement or other instrument reasonably required by the utility company.
11. Termination. Coxmayterminate this Agreement at any
time by notice to Ownerwithoutfurther liabilityif (i) Coxdoes not obtain all permits, consents, easements, non-disturbance Site J.D. No.: RV~5-XC-094(D)
agreements or other approvals (collectively, "approval") reasonably desired by Cox or required from any governmental authority or any third party related to or reasonably necessary to operate the PCS system, or if any such approval is canceled, expires or is withdrawn or terminated, or (ii) if Owner fails to have proper ownership of the Site or authority to enter into this Agreement, or (iii) if Cox, for any other reason, in its sole discretion, determines that it will be unable to use the Site.
Upon termination, all prepaid rent shall be retained by Owner, unless termination is pursuant to (ii) above or is a result of Owner's default. The easements granted herein shall terminate upon the termination of this Agreement.
12. Default. If either party is in default under this Agreement for a period of (a) fifteen (15) days following receipt of notice from the non-defaulting party with respect to a default which may be cured solely by the payment of money, or (b) thirty (30) days following receipt of notice from the non-defaulting party with respect to a default which may not be cured solely by the payment of money, then, in either event, the non-defaulting party may pursue any remedies available to it against the defaulting party under applicable law, including, but not limited to, the right to terminate this Agreement. If the non-monetary default may not reasonably be cured within a thirty (30) day period, this Agreement may not be terminated if the defaulting party commences action to cure the default within such thirty day period and proceeds with due diligence to fully cure the default.
13. Indemnity. Owner and Cox each indemnifies the other against and holds the other harmless from any and all costs (including reasonable attorneys' fees) and claims of liability or loss which arise out of the ownership, use and/or occupancy of the Site by the indemnifying party. This indemnity does not apply to any claims arising from the sole negligence or intentional misconduct of the' indemnified party. The
indemnity obligations under this Section will survive the termination of this Agreement.
14. Hazardous Substances. Owner represents that it has no knowledge of any substance, chemical or waste (collectively, "substance") on or under the Site or Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. Cox will not introduce or use any such substance on the Site in violation of any applicable law.
G:\Cl.1EN'JSIJSBI$thern CaliCornia\Rlvenide\RV-3S-XC-094(D)1I'CS SileAgreemeul.7.wpd Seplember19,2001 .
April 1999 ,. PCS SITE AGREEMENT
SiteName: TowngatePark
Owner shall indemnify and hold Cox harmless from and against all claims, actions, damages, fines, liabilities, costs and expenses (including attorneys' and expert fees) arising, directly or indirectly, from the presence of any substance on, under or around the Property or the Site, unless said substance was actually brought onto the Property or Site by Cox. This obligation to indemnify Cox shall include damages, costs and expenses incurred in connection with any investigation, cleanup, remediation, monitoring, removal or restoration related to the presence of any substance. This indemnity shall survive the expiration or termination of this lease.
15. Subordination/Non-disturbance. This Agreement is
subordinate to any lien, mortgage or deed of trust now of record against the Property. However, promptly after this Agreement is fully executed, Owner will use diligent efforts to obtain a non-disturbance agreement reasonably acceptable to Cox from the holder of any such mortgage or deed of trust.
16. Taxes. Cox will be responsible for payment of all personal property taxes assessed directly upon and arising solely from its use of the PCS on the Site. Cox will pay to Owner any increase in real property taxes attributable solely to any improvements to the Site made by Cox within sixty (60) days after receipt of satisfactory documentation indicating calculation of Cox's shares of such real estate taxes and payment of the real estate taxes by Owner. Owner willpay when due all other real estate taxes and assessments attnDutable to the Property of which the Site is a part.
17. Insurance. Cox will procure and maintain commercial general liability insurance, with limits of not less than One Million Dollars ($1,000,000) combined single limit per
occurrence for bodily injury and property damage liability, with a certificate of insurance to be furnished to Owner within thirty (30) days of written request, adding Owner, the City of Moreno Valley and the Community Redevelopment Agency as
additional insureds. Such policy will provide that cancellation will not occur without at least fifteen (15) days prior written notice to Owner. Each party hereby waives its right of recovery against the other for any loss or damage covered by any insurance policies maintained by the waiving party. Each party will cause each insurance policy obtained by it to provide that the insurance company waives all rights of recovery against the Site J.D.No.: RV-35-XC-094(D)
other party in connection with any damage covered by such policy.
18. Maintenance. Cox will be responsible for repairing and maintaining the PCS and any other improvements installed by Cox at the Site in a proper operating and reasonably safe condition; provided, however, if any such repair or
maintenance is required due to acts of Owner, its agents or employees, Owner shall reimburse Cox for the reasonable costs incurred by Cox to restore the damaged areas to the condition which existed immediately prior thereto. Owner willmaintain and repair all other portions of the Property of which the Site is a part in a proper operating and reasonably safe condition.
19. Relocation Ri2ht.
A Owner will have the one-time right to relocate the
PCS, or any part thereof including Light Pole replacement, to an alternate ground location on the Property and/or to space within and/or on top of a building situated on the Property (the "Building"); provided, however, that such relocation will (1) be at Owner's sole cost and expense, (2) be performed exclusively by Cox or its agents, (3) not result in any interruption of the communications service provided by Cox on Owner's property, (4) not impair, or in any manner alter, the quality of
communications service provided by Cox on and from Owner's Property, and (5) be done in accordance with the terms and conditions contained in paragraphs Band C, below. Upon
relocation of the PCS, the access and utility easement( s) of Cox will be relocated as required, in the sole discretion of Cox, to operate and maintain the PCS.
B. Owner will exercise its relocation right under
Paragraph A, above,by (and onlyby) deliveringwritten notice (the "Notice")to Cox. In the Notice, Owner willpropose an alternate site on the Property to which Cox may relocate its PCS. Coxwillhave sixty(60) daysfrom the date it receivesthe Notice to evaluate Owner's proposed relocation site, during which period Cox' will have the right to conduct tests to determine the technological feasibility of the proposed relocation site. If Cox fails to approve of such proposed relocation site in writingwithin said sixty-dayperiod, then Cox willbe deemed to have disapproved such proposed relocation site. If Coxdisapprovessuch relocation site, then Ownermay thereafter propose another relocation site by notice to Coxin G:\CI.IENIS\JSB'.'PRINI\Southcm Califoruia\RivtnideIRV-3S-XC094(D)\1'CS Site AgeemCllt.7.wpd September 19.2001
PCS SITE AGREEMENT
April 1999
Site Name: Towngate Park
the manner set forth above. Any relocation site which Owner and Cox agree upon in writing is referred to hereinafter as the "Relocation Site". Cox will have a period of ninety (90) days after execution of a written agreement between the parties concennng the location and dimensions of the Relocation Site to relocate (at Owner's expense) its PCS to the Relocation Site.
C. Upon relocation of the PCS, or any part thereof, to the Relocation Site, all references to the Site in the Agreement will be deemed to be references to the Relocation Site. Owner and Cox hereby agree that the Relocation Site (inc1udingthe access and utility right of way) may be surveyed by a licensed surveyor at the sole cost of Cox, and such survey will then replace Exhibit "B" and become a part hereof and will control or describe the Site. Except as expressly provided in this Exhibit, Owner and Cox hereby agree that in no event will the
relocation of the communications facility of Cox, or any part thereof, under Paragraph A, above, affect, alter, modify or otherwise change any of the terms and conditions of the foregoing Agreement.
20. MisceUaneous. (a) This Agreement appliesto and binds the heirs, successors,executors, administrators and assignsof the parties to thisAgreement;(b) ThisAgreement is governed by the laws of the State in which the Site is located, and, without waivingor limitingtheir rights to bring an action in a Federal Court havingjurisdiction thereof, the parties hereto agree to submit to courts having jurisdiction in Riverside County; (c) If requested by Cox, Owner agrees promptly to execute and deliver to Coxa recordable Memorandum of this PCS Site Agreement in the form of Exhibit C; (d) This
Agreement (including the Exhibits) constitutes the entire agreement between the parties and supersedes allprior written and verbal agreements, representations, promises or
understandings between the parties, and any amendments to this Agreement must be in writing and executed by both
parties; (e) 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 asto whomit isheld invalidor unenforceable, willnot be affected and each provisionof this Agreement will be valid and enforceable to t~e fullest extent permitted bylaw; and (f) The prevailing party in any action or proceeding in court or mutually agreed upon arbitration proceeding to enforce the terms of this Agreement is entitled to receive its Site I.D. No.: RV-35-XC~94(D)
reasonable attorneys fees and other reasonable enforcement costs and expenses from the non-prevailing party.
The following Exluoits are attached to and made a part of this Agreement: Exlnoit A, Band C.
OWNER: MORENO VALLEY
SERVIcm1DISTRICf
COMMUNITY
By:
Print Name:
Its:
S.S.ffax No.:
Address:
Phone:
City of Moreno Valley
City Hall, PublicWorks Dept.
14177Frederick Street
Moreno Valley, CA 92552
(909) 413-3155
Dated:October 23 , 2001
COX: CO
.
X PCS, ASSETS, L.L.c., a Delaware limited
li~bil#YWt9pany
By:
K~(Jamble
Its: Re'tonal Director of Site Development
Dated:
~2001
ATTEST:
APPiOved as to Form
Date Ip/~/
By ~
City Atlornev
Moreno Val"'v
Alice Reed, City Clerk acting
in the capacity of Secretary
of the Moreno Valley Community
Services District
G:\CLIEN'lS\JSB\Sl'RIN'l'$outhem Califoruia\Rivenide\RV.3S-XC094(D)\PCS Silo Ageement.7.wpd September 19, 2001 ,.- EXHIBIT A
to
pcs SITE AGREEMENT
DESCRIYTIONOF OWNER'S PROPER1Y
Site Name: TOWDg,ate Park Site I.D. No.: RV-3S-XC-094(D) Description of Owner's Property:
The real property situated in the City of Moreno Valley, County of Riverside, State of California (APN: 291- 120-035-9), and more particularly described as:
Lot 14 of Tract 22049, in the City of MORENOVALLEY,County of RIVERSIDE, State of California, as per map recorded in Book 177, page(s) 1 through 8, inclusive, of Maps, Records of said County, together with the Northeasterly 100.00 feet of Lot 17, of said Tract, as described in Lot line Adjustment No. 848, recorded April 17, 1992 as Instrument No. 137874, Official Records of said County. .
Owner Initials
Cox Initials