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FIRST AMENDMENT
TO CITY OF ARCADIA COMMUNICATIONS SITE LEASE AGREEMENT
WITH LOS ANGELES SMSA LIMITED PARTNERSHIP
• ♦ VERIZON WIRELESS
THIS FIRST AMENDMENT TO COMMUNICATIONS SITE LEASE AGREEMENT
( "Amendment ") is made between the City of Arcadia (hereinafter referred to as "City "), and Los
Angeles SMSA Limited Partnership d /b /a Verizon Wireless ("Lessee"), City and Lessee are
at times collectively referred to hereinafter as the "Parties" or individually as the "Party."
WHEREAS, the City is the owner of that certain real property generally located at 1410
South 6th Avenue, in the City of Arcadia, County of Los Angeles, State of California, identified
as Assessor's Parcel Number 5780- 012 -904 and Assessor's Parcel Number 5780 -012 -906
( "City's Property "). City's Property is used as a municipal park;
WHEREAS, the City and Lessee are parties to that certain Communications Site Lease
Agreement last executed on July 26, 2011 ( "Lease "), pursuant to which Lessee leases a portion
of the City's Property ( "Leased Area ") for the purpose of erecting, maintaining and operating a
communications facility. The Leased Area is substantially described in the site plans attached as
Exhibit "A" to the Lease; and
WHEREAS, the Parties now desire to amend the Lease to memorialize certain revisions
to Lessee's access path to the Leased Area and address the trimming of certain landscaping
located along the perimeter of Lessee's Leased Area and certain construction protocols, all as set
forth in greater detail below.
AGREEMENT
NOW, THEREFORE, in consideration of the facts contained in the Recitals above, the
mutual covenants and conditions below, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. SITE PLANS: The site plans attached as Exhibit "A" to the Lease are hereby
supplemented by the site plans attached hereto as Supplemental Exhibit A and made a
part hereof. Hereinafter, all references in the Lease to Exhibit "A" shall include
Supplemental Exhibit "A." Supplemental Exhibit "A" memorializes that the City hereby
licenses to Lessee the non - exclusive use of a ten -foot (10') wide access for pedestrian and
vehicular ingress and egress to the Leased Area, and licenses to Lessee the non - exclusive
use of a three -foot (3') wide access for pedestrian ingress and egress to the Leased Area
( "Licensed Area "). Notwithstanding anything to the contrary herein or in the Lease,
Lessee's access to the Leased Area by way of the Licensed Area shall be subject to the
reasonable prior approval of the City if such access conflicts with the public's use of the
City's Property as a municipal park during operating hours, including, but not limited to,
FIRST AMENDMENT
TO CITY OF ARCADIA COMMUNICATIONS SITE LEASE AGREEMENT
WITH LOS ANGELES SMSA LIMITED PARTNERSHIP
• ♦ VERIZON WIRELESS
THIS FIRST AMENDMENT TO COMMUNICATIONS SITE LEASE AGREEMENT
( "Amendment ") is made between the City of Arcadia (hereinafter referred to as "City "), and Los
Angeles SMSA Limited Partnership d /b /a Verizon Wireless ("Lessee"), City and Lessee are
at times collectively referred to hereinafter as the "Parties" or individually as the "Party."
WHEREAS, the City is the owner of that certain real property generally located at 1410
South 6th Avenue, in the City of Arcadia, County of Los Angeles, State of California, identified
as Assessor's Parcel Number 5780- 012 -904 and Assessor's Parcel Number 5780 -012 -906
( "City's Property "). City's Property is used as a municipal park;
WHEREAS, the City and Lessee are parties to that certain Communications Site Lease
Agreement last executed on July 26, 2011 ( "Lease "), pursuant to which Lessee leases a portion
of the City's Property ( "Leased Area ") for the purpose of erecting, maintaining and operating a
communications facility. The Leased Area is substantially described in the site plans attached as
Exhibit "A" to the Lease; and
WHEREAS, the Parties now desire to amend the Lease to memorialize certain revisions
to Lessee's access path to the Leased Area and address the trimming of certain landscaping
located along the perimeter of Lessee's Leased Area and certain construction protocols, all as set
forth in greater detail below.
AGREEMENT
NOW, THEREFORE, in consideration of the facts contained in the Recitals above, the
mutual covenants and conditions below, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. SITE PLANS: The site plans attached as Exhibit "A" to the Lease are hereby
supplemented by the site plans attached hereto as Supplemental Exhibit A and made a
part hereof. Hereinafter, all references in the Lease to Exhibit "A" shall include
Supplemental Exhibit "A." Supplemental Exhibit "A" memorializes that the City hereby
licenses to Lessee the non - exclusive use of a ten -foot (10') wide access for pedestrian and
vehicular ingress and egress to the Leased Area, and licenses to Lessee the non - exclusive
use of a three -foot (3') wide access for pedestrian ingress and egress to the Leased Area
( "Licensed Area "). Notwithstanding anything to the contrary herein or in the Lease,
Lessee's access to the Leased Area by way of the Licensed Area shall be subject to the
reasonable prior approval of the City if such access conflicts with the public's use of the
City's Property as a municipal park during operating hours, including, but not limited to,
any use of the City's tennis courts by the public during tennis court operating hours, or
use of the park patio and patio cover during municipal park operating hours. In the event
that the City approves such conflicting access via the Licensed Area during municipal
park operating hours as described above, the Lessee shall post notice of such use of
Licensed Area at the municipal park at least forty -eight (48) hours prior to such use in at
least two locations as directed by the City. In the event that such conflicting access is
necessitated by a bona -fide emergency as determined by Lessee in its good faith
discretion, Lessee may also access the Licensed Area at any time, seven (7) days per
week, twenty -four (24) hours per day, provided however, that Lessee shall provide the
City with as much advance notice of said emergency conflicting access as reasonably
possible and, to the extent reasonably possible, Lessee shall post notice of the conflicting
access at the municipal park.
2. IMPROVEMENTS: The City hereby consents to Lessee's installation of proposed access
gates on the City's Property substantially in the locations described and depicted on
Supplemental Exhibit "A ", in accordance with plans and specifications approved in
advance by the City.
3. LANDSCAPE TRIMMING BY CITY:
(a) With respect to the three (3) existing trees ( "Landscaping ") located to the east of
Lessee's Leased Area, which are described and depicted on Supplemental Exhibit "A," the
City acknowledges that it will reasonably trim said Landscaping during the Term, such
trimming to occur in the ordinary course of the City's general landscape maintenance of
the City's Property, which is once every four (4) years.
(b) However, the Parties acknowledge that notwithstanding such regular trimming,
there is a risk that the branches or any part of the Landscaping may potentially encroach
upon the Leased Area or otherwise interfere with Lessee's Communications Equipment.
Accordingly, to the extent that Lessee reasonably determines that such Landscaping is
interfering with, or may interfere with Lessee's Communications Equipment, Lessee shall
provide the City with written notice ( "Additional Landscaping Notice ") requesting
additional trimming of the Landscaping to eliminate the interference to the reasonable
satisfaction of Lessee ( "Additional Landscaping "). Subject to the right of the City to
exercise reasonable discretion in determining the reasonableness of the request for
Additional Landscaping, and on condition both Parties agree that Additional Landscaping
is required, the City shall endeavor to perform the Additional Landscaping requested
within thirty (30) days after receipt of the Additional Landscaping Notice. In the event
that the City cannot complete the Additional Landscaping within thirty (30) days after
receipt of the Additional Landscaping Notice, or in the event that the City disagrees with
the need for, or scope of, the Additional Landscaping requested, the City and Lessee shall
work together in good faith to agree upon a mutually agreeable, reasonable time frame
and /or scope of Additional Landscaping requested, if any. Upon completion of any
Additional Landscaping, the City shall provide Lessee with written notice of said
completion, which notice shall include an invoice and reasonable supporting
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documentation of any actual costs incurred by the City in performing the Additional
Landscaping. Lessee shall pay the invoice within thirty (30) days of receipt. In the event
that the City estimates that the Additional Landscaping requested in the Additional
Landscaping Notice is expected to exceed Six Hundred Dollars ($600.00), City shall seek
prior written approval of Lessee of such costs before performing such Additional
Landscaping.
(e) After the City provides written notice of its completion of any Additional
Landscaping, Lessee shall thereafter have twenty (20) days to inspect the Additional
Landscaping and advise the City of any perceived deficiencies. The City may, in its
reasonable discretion, perform additional work to remedy the perceived deficiencies. In
the event that the City and Lessee disagree as to the perceived deficiencies, the City and
Lessee shall work together in good faith to agree upon a mutually agreeable remedy to the
perceived deficiencies. Upon completion of any Additional Landscaping pursuant to the
perceived deficiencies, the City shall provide Lessee with written notice of said
completion. In the event that the City estimates that the Additional Landscaping required
to remedy the perceived deficiencies shall result in an additional invoice to Lessee, the
City shall seek prior written approval of Lessee of such costs before performing such
Additional Landscaping. Any resulting invoice shall include reasonable supporting
documentation of any actual costs incurred by the City in performing the Additional
Landscaping to remedy the perceived deficiencies. Lessee shall pay the invoice within
thirty (30) days of receipt.
4. CONSTRUCTION PROTOCOLS: At all times during which Lessee performs
construction work at the City's Property (including but not limited to the installation of
Lessee's monopine communications tower and equipment cabinets) in connection with
the Lease, during every day of construction, Lessee's construction area shall be fenced off
and secured, in accordance with plans and specifications approved by the City, so as to
reasonably prevent access to the construction site by the students of the Arcadia
elementary school ( "School "), which is located adjacent to the City's Property. Further,
at no time shall Lessee's construction materials or contractors be allowed on the School
premises unless otherwise agreed upon by the School principal in a prior writing.
5. DEFINED TERMS: Unless otherwise provided herein, all defined terms shall have the
same meaning as ascribed to such terins in the Lease.
6. CONTINUED EFFECT: Except as specifically set forth herein, this Amendment shall in
no way modify, alter or amend the remaining terms of the Lease, all of which are hereby
ratified by the Parties and shall remain in full force and effect. In the event of a conflict
between any term or provision of the Lease and this Amendment, the terms and
provisions of this Amendment shall control. All captions are for reference purposes only
and shall not be used in the construction or interpretation of this Amendment.
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7. VIOLATION DEEMED CAUSE FOR TERMINATION: Pursuant to Section 3.10.2 of
the Lease, any violation of any term, covenant, condition or provision contained in this
Amendment shall be cause for immediate termination of the Lease.
8. APPROVALS. Except as otherwise provided, with respect to any approvals required
from any party under the Lease, such approvals shall not be unreasonably withheld,
conditioned or delayed.
IN WITNESS WHEREOF, the Parties have duly executed this FIRST AMENDMENT TO
COMMUNICATIONS SITE LEASE AGREEMENT as of the day and year last written below.
CITY:
CITY OF ARCADIA
By:
Donald Penman
City Manager
Date: 4—at f).?—
ATTEST:
City rk
APPROVED AS TO FORM:
By:
Stephen P. Deitsch
City Attorney
Date: M" 6 )-,o / �-
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LESSEE:
Los Angeles SMSA Limited Partnership
d/b/a Verizon Wireless
By: AirT
By:
Name: 7 =700
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Title: Area Vi
Date:
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Supplemental Sketch of Leased Area within City's Property
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CITY OF ARCADIA
COMMUNICATIONS SITE LEASE AGREEMENT
WITH LOS ANGELES SMSA LIMITED PARTNERSHIP
D /E /A VERIZON WIRELESS
1. PARTIES AND DATE.
This Communications Site Lease Agreement ( "Agreement ") is made and
entered into, for reference purposes only, this day of TcN.e , 2011 by
and between the City of Arcadia (hereinafter referred to as "City "), a municipal
corporation, and Los Angeles SMSA Limited Partnership, a California limited
partnership, d /b /a Verizon Wireless (hereinafter referred to as "Lessee "). The
City and Lessee are sometimes collectively referred to herein as the "Parties."
2. RECITALS.
2.1 Description of Leased Land. The City represents that it is the
owner of a piece of land generally located at 1410 South 6th Street, in the City of
Arcadia, County of Los Angeles, State of California, identified as
Assessor's Parcel Number 5780 - 012 -904 and Assessor's Parcel Number
5780 - 012 -906 ( "City's Property "), as legally described on Exhibit "C" attached
hereto and incorporated herein by reference. City would like to allow the Lessee
to use and the Lessee would like to use approximately seven hundred forty -five
(745) square feet of the City's Property for its equipment shelter, monopine
(including those portions of the Property over which the branches of Lessee's
monopine may extend), and antennas, as well as all necessary space and
easements for access and utilities as more particularly depicted on Exhibit "A"
attached hereto ( "Leased Area ") for radios /antennas and associated equipment,
fixtures, and cabling (collectively "Communications Equipment "). City desires
to allow the Lessee to use the Leased Area and Lessee desires to use the
Leased Area for the purpose of installing, removing, replacing, modifying,
maintaining, and operating a communications facility using Lessee's
Communications Equipment in exchange for due and adequate consideration,
the receipt and sufficiency of which are acknowledged by the Parties and further
described and set forth in this Agreement.
2.2 Access. In addition, during the Term, as defined herein, Lessee
shall have a nonexclusive, twenty -four (24) hours a day, seven (7) days a week,
right of access, ingress, and egress ( "Right of Access ") over the City's Property
to install, operate, maintain and remove the Lessee's Facilities, as defined below.
The Right of Access will be located within the approximately four -foot (4') wide
access path substantially described and depicted on Exhibit "A."
3. TERMS.
3.1 Leased Area. City hereby grants Lessee a license on and over the
Leased Area, on the terms hereinafter set forth, for the purpose of constructing
Site Name: FAIRGREEN
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and operating the Lessee's Facilities, as defined below, to provide
mobile /wireless communications services to Lessee's customers. The license
granted herein is irrevocable other than as set forth herein.
3.2 Term. The term ( "Term ") of this Agreement shall be for sixty (60)
calendar months commencing upon the first day of the second month following
the Execution Date (defined below) (the "Commencement Date ").
Notwithstanding the foregoing, this Agreement may be terminated in accordance
with the provisions herein.
3.3. Option to Renew. Provided Lessee is not in default under any of
the terms of this Agreement beyond applicable grace or cure periods, Lessee
shall have the option to renew this Agreement on the terms and conditions herein
contained for four (4) additional terms (each, a "Renewal Term ") of five (5) years
each. The Agreement shall be deemed to be automatically extended for each
successive Renewal Term unless Lessee provides written notice to City of
Lessee's intent not to do so at least ninety (90) days prior to the expiration of the
first Term or any Renewal Term,
3.4 Facilities; Utilities; Access.
3.4.1 Subject to the provisions of Sections 2.2, 3.10.3 and 3.11 of
this Agreement, Lessee has the right to erect, maintain and operate on the
Leased Area radio transmitting and receiving antennas, parabolic antennas, a
communications tower (approved by the City's planning commission, or if
appealed city council) and base, equipment shelters and cabinets and related
cables and utility lines and a location based system, including, without limitation,
antenna(s), coaxial cables, base units, location based systems, and all ancillary
wiring, cabling, mounting hardware and associated equipment (collectively,
"Lessee's Facilities "). The Lessee's Facilities shall be used to provide
mobile /wireless communications services. A schematic of the Lessee's Facilities
( "Schematic ") is attached as Exhibit "A." Lessee shall not deviate from the
approved Schematic without the prior written approval of City, which approval
shall not be unreasonably withheld, conditioned, or delayed.. Provided all work
shall comply with the Schematic, Lessee has the right to install and operate the
Lessee's Facilities on the Leased Area. All of Lessee's construction and
installation work shall be performed at Lessee's sole cost and expense. Lessee
agrees to obtain all permits and to furnish and transport all necessary labor,
materials, tools, implements, and appliances required to install and finish
completely in a good and workmanlike manner, free of any and all liens and
claims of laborers, materialmen, suppliers, and subcontractors, and in conformity
with the Schematic and all applicable state, county, and municipal laws, codes,
and regulations, the Lessee's Facilities.
3.4.2 Lessee's Facilities shall remain Lessee's personal property
and are not fixtures.
Site Name: FAIRGREEN 2
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3.4.3 Lessee shall pay for any utilities and services required for
the Communication Equipment. Lessee has confirmed with the local utilities
provides that it may, and therefore shall, separately meter charges for the
consumption of electricity and other utilities associated with its use of the Leased
Area and shall promptly pay all costs associated therewith at the rate charged by
the servicing utility provider. Lessee shall not be permitted to install or use
submeters for utility charges where the master metered service is in the City's
name without the written consent of both the servicing utility provider and the
City, which may be withheld in the City's sole discretion. City shall provide
Lessee, at Lessee's cost, with such reasonable assistance as is necessary to
enable Lessee to arrange for such utilities and services. City hereby grants
Lessee an easement in, under and across the City's Property adequate to install
and maintain utilities, which include, but are not limited to, the installation of
electric power and telephone service connections.
3.4.4 Lessee shall have the right to install a location based system
at the Leased Area as may be required by any county, state or federal agency /
department to comply with applicable Enhanced 911 requirements (E911).
3.5 Use. Lessee's use of the Leased Area shall comply with all
applicable laws, ordinances and regulations. City may license other
communication users on the City's Property, provided such other users do not
interfere with Lessee's use. Lessee shall not interfere with the communications
operations of any other persons of entities who may have a lease or other
entitlement with City for the City's Property which pre -dates this Agreement.
3.6 Consideration. As consideration for the issuance of this
Agreement, commencing on the Commencement Date ( "Monthly Payment
Commencement Date "), Lessee shall pay to the City monthly installments of
Two Thousand Two Hundred Eighty -Five Dollars and no cents ($2,285.00) each
month (each, a "Monthly Payment "). Except as otherwise provided herein,
Monthly Payments shall be payable in advance on or before the first (1st) day of
the month; provided however, that such payment will not be considered late until
the fifth (5th) day of each calendar month. If this Agreement is terminated at any
time other than the last day of a month, pre -paid Monthly Payments shall be
prorated as of the date of termination and any overpayment shall be promptly
returned to Lessee.
City and Lessee acknowledge and agree that the initial Monthly
Payment(s) shall not actually be sent by Lessee until thirty (30) days after the
Commencement Date. By way of illustration of the preceding sentence, if the
Commencement Date is January 1, Lessee shall send to the City the Monthly
Payments for January 1 and February 1 by February 1.
3.7 Increase of Monthly Payments. Throughout the Term and any
Renewal Terms exercised, on the anniversary of the Commencement Date, the
Monthly Payment shall increase by three percent (3 %) over the Monthly Payment
Site Name: FAIRGREEN 3
during the preceding year. In addition, if Lessee collocates on Lessee's Facilities
the facilities of another provider of communications services, either: (i) the
Monthly Payment shall be reasonably increased by an amount to be determined
by the City; or (ii) in the event such collocator leases ground space associated
with its use of Lessee's Facilities directly from City, City shall be entitled to all
income derived by such ground space lease and Lessee shall be entitled to all
income derived from the collocator's use of Lessee's Facilities.
3.8 Payments. All payments to City shall be made payable to: City of
Arcadia, 11800 Goldring Road Post Office Box 60021 Arcadia, California 91066-
6021, Attn: Public Works Services Department.
3.9 Late Payment Charges. Lessee hereby acknowledges that late
payment by Lessee to City of the Monthly Payment and other sums due
hereunder will cause City to incur costs not contemplated by this Agreement, 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 consideration or any other sum due from Lessee shall not be
received by City within twenty (20) days after receipt of written notice that such
amount was not received when due, Lessee shall pay to City a late charge equal
to ten percent (10 %) per annum of such overdue amount. In no event shall the
late charge exceed the maximum allowable by law. Acceptance of such late
charge by City shall in no event constitute a waiver of Lessee's default with
respect to such overdue amount and shall not prevent City from exercising any of
the other rights and remedies granted hereunder.
3.10 Termination. All notices of termination shall be given in
accordance with Section 3.27 below.
3.10.1 Termination By Lessee. This Agreement may be terminated
at any time by Lessee:
(a) immediately if Lessee notifies City of unacceptable results of
any title report, environmental or soil tests prior to Lessee's installation of
Lessee's Facilities on the Leased Area, or if Lessee is unable to obtain, maintain,
or otherwise forfeits or cancels any license (including, without limitation, a
Federal Communications Commission ( "FCC ") license), permit or any
governmental approval necessary to the installation and /or operation of Lessee's
Facilities or Lessee's business ( "Governmental Approval ");
(b) immediately upon written notice by Lessee if the Leased Area or
Lessee's Facilities are destroyed or damaged so as in Lessee's reasonable
judgment to substantially and adversely affect the effective use of Lessee's
Facilities. In such event, all rights and obligations of the parties shall cease as of
the date of the damage or destruction, and Lessee shall be entitled to the
reimbursement of any consideration prepaid by Lessee, except to the extent
such damage was caused by the negligence or willful misconduct of Lessee,
Site Name: FAIRGREEN 4
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Lessee's partners, affiliates, agents, officials, officers or employees. If this
Agreement is not so terminated, then the Monthly Payment shall abate in
proportion to the extent Lessee is unable to use the Leased Area; or
(c) at the time title to City's Property transfers to a condemning
authority, pursuant to a taking of all or a portion of City's Property sufficient in
Lessee's determination to render the Leased Area unsuitable for Lessee's use.
City and Lessee shall each be entitled to pursue their own separate awards with
respect to such taking. Sale of all or part of City's Property to a purchaser with
the power of eminent domain in the face of the exercise of the power shall be
treated as a taking by condemnation; or
(d) if Lessee reasonably determines that the Leased Area or City's
Property are not appropriate for its operations: (i) for reasons directly related to
the environmental status of the Property such that Lessee's potential Hazardous
Substances (defined below) liability becomes unacceptable to Lessee, in
Lessee's reasonable discretion, through no fault of its own; (ii) for technological
reasons, including, without limitation, signal strength or blockage interference
which causes a demonstrable adverse impact to the quality, capacity or coverage
area of the services provided by Lessee from the Premises, through no fault of
Lessee; (iii) any of Lessee's applications for Governmental Approvals is finally
rejected by a governmental authority through no fault of Lessee; (iv) any
Governmental Approval issued to Lessee is canceled, expires, lapses, or is
otherwise withdrawn or terminated by a governmental authority through no fault
of Lessee; or (v) Lessee, in its sole discretion, determines that the use of the
Leased Area is obsolete or unnecessary. In the event that Lessee terminates
pursuant to Subsections 3.10.1(d)(ii), (iv) or (v) above prior to the expiration of
the first Renewal Term, Lessee shall pay City a one -time termination penalty
within twenty (20) days of the effective date of termination in an amount equal to
six (6) times the then current Monthly Payment as liquidated damages.
3.10.2 Termination By Lessee Or City - For Cause. Violation of any
term, covenant, condition or provision contained herein by either party shall be
cause for immediate termination of this Agreement by the other party, unless
corrected within thirty (30) days after the other party's receipt of written request to
do so. Late payment not cured within twenty (20) days after receipt of written
notice is cause for immediate termination at the sole discretion of City.
3.10.3 Removal of Improvements. All structures and /or other
improvements placed on the City's Property by Lessee shall be the personal
property of Lessee and shall be removed by Lessee to a depth of at least one
foot (1') below grade from City's Property within sixty (60) days following the last
day of the Term. In the event of termination by either party, improvements shall
be removed within sixty (60) days following the date the notice of termination
becomes effective. City may keep, or dispose of, at Lessee's expense, any real
or personal property not so removed. If City has agreed in writing that Lessee
may leave any of its improvements in place, or if the City elects to keep personal
Site Name: FAIRGREEN cJ
property not removed by Lessee in accordance with this Section, then City shall
be the sole owner of improvements remaining on the City's Property after said
sixty (60) days in their AS IS and WHERE IS condition without representation or
warranty of any kind other than any manufacturer's warranty that may apply
which Lessee shall transfer to CITY, if any. Lessee agrees to pay any
reasonable costs incurred by City if Lessee fails to timely remove Lessee's
Facilities, including reasonable attorneys' fees and costs expended on action by
City to compel removal by Lessee or collect damages. During such initial sixty
(60) day period, Lessee shall pay one hundred twenty -five percent (125 %) of the
then current Monthly Payment. Lessee agrees that the inconvenience and other
damage to City in the event of Lessee's failure to timely remove Lessee's
Facilities is impossible to measure precisely, but agrees that five hundred dollars
($500) per day is a reasonable estimate of City's damages. To this end, in the
event Lessee fails to restore the City's Property and Leased Area as required,
Lessee shall pay to City the sum of five hundred dollars ($500) as liquidated
damages for each day following sixty (60) days, after the expiration or
termination of this Agreement during which Lessee's Facilities remain on the
City's Property without the City's written consent, and /or the City's Property or
Leased Area are not restored as required by this paragraph; provided however,
that the liquidated damages shall not exceed Seventy -Seven Thousand Dollars
($77,000.00).
3.10.4 Vacating the City's Property. Within sixty (60) days of the
expiration of the term or at any sooner termination of this Agreement, Lessee
shall quit and surrender possession of the City's Property and its appurtenances
to City in as good order and condition as the City's Property was delivered to
Lessee, reasonable wear and tear and damage due to casualty not caused by
Lessee excepted. Lessee agrees to pay reasonable clean -up costs incurred by
City provided that City provides Lessee with a written invoice therefor along with
reasonably supporting documentation.
3.11 Interference.
3.11.1 Lessee shall operate Lessee's Facilities in a manner that will
not cause harmful interference to City or City's use of the City's Property, as well
as to other lessees or licensees of the City's Property, provided that such
installations predate that of Lessee's Facilities. Except as reasonably agreed to
by City, Lessee shall not perform or have performed any tests, construction,
installation, operation, maintenance or repair activities on the City's Property or
Leased Area which will likely interfere with City's quiet enjoyment of the City's
Property outside of the Leased Area. All operations by Lessee shall be in
compliance with all FCC requirements, as well as other applicable Federal, State
and local laws, rules and regulations. In the event prohibited interference occurs,
Lessee agrees to take all reasonable steps necessary to eliminate such
interference promptly including but not limited to powering down the interfering
equipment. If Lessee fails to power down the interfering equipment or otherwise
cease prohibited interference as set forth herein, it shall be considered an event
Site Name: FAIRGREEN 6
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of default and City shall have the right, in its discretion, to either disconnect
Lessee's interfering equipment from their power source or terminate this
Agreement upon written notice to Lessee. Notwithstanding the foregoing, in the
event Lessee does power down the interfering equipment as required herein, it
shall be allowed to temporarily re -power such equipment during non -peak hours
of operation previously scheduled with City as necessary to identify and /or solve
the prohibited interference. In the event Lessee is unable to solve the
interference in a commercially reasonable manner, Lessee may, in its reasonable
discretion, terminate this Agreement without further obligation accruing thereafter
other than as specifically set forth herein.
3.11.2 Similarly, City shall not use, nor shall City permit its lessees,
licensees, employees, invitees or agents to use, any portion of City's Property in
any way which adversely interferes with the operations of Lessee in a manner
that can be evidenced through the provision of supporting data to be provided by
Lessee, except to the extent that such use predates the operation of Lessee's
Facilities. Such interference shall be deemed a material breach by the City, who
shall upon written notice from Lessee, use reasonable and diligent efforts to
terminate said interference. In the event any such interference does not cease
promptly, Lessee shall have the right to terminate this Agreement pursuant to
Section 3.10.2 or to seek an injunction against the actual interfering party.
3.11.3 Lessee acknowledges that this Agreement is subject and
subordinate to the prior and future rights of City to use the City's Property,
excluding the Leased Area, in the exercise of City's powers and in the
performance of City's duties. There is reserved to City the right to construct or
reconstruct facilities and appurtenances in, upon, over, under, across and along
the City's Property, and in connection therewith, the right to grant or convey to
others rights and interest to the City's Property; provided such rights and
interests do not cause adverse interference with Lessee's operations in a manner
that can be evidenced through the provision of supporting date to be provided by
Lessee as prohibited herein.
3.12 Lessee's Work, Maintenance and Repairs. All of Lessee's
construction and installation work at the Leased Area shall be performed at
Lessee's sole cost and expense and in a good and workmanlike manner. No
improvements related to the Lessee's Facilities or otherwise installed by Lessee
on the Leased Area, shall be constructed or maintained without City's prior
written approval of plans and specifications, including the aesthetic and visual
nature of such improvements, which approval shall not be unreasonably
withheld, conditioned or delayed. No change to the Lessee's Facilities shall
occur on the Leased Area without issuance by the City of Arcadia of all approvals
and permits required for the construction of the improvements or the operation
thereof, if any such approvals or permits are required. Lessee shall not change
the existing grade or otherwise modify the topography of the Leased Area or the
City's Property affected by this Agreement without prior written consent of City.
Lessee shall, at Lessee's sole cost and expense, keep the Lessee's Facilities
Site Name: FAIRGREEN 7
r ,
and Leased Area in reasonably good, proper, and safe condition in compliance
with all applicable laws and regulations. All improvements shall be maintained in
reasonably good appearance, in accordance with City's reasonable written
direction which may be provided to Lessee from time to time, including but not
limited to, painting and screening. In addition, Lessee shall make any repairs to
the City's Property caused by Lessee, its employees, agents, contractors or
subcontractors, or incident to such parties' use of the Leased Area or
implementation of this Agreement. Notwithstanding anything herein to the
contrary, City's approval shall not be required with respect to the repair of
then - existing Communications Equipment or the replacement of then - existing
Communications Equipment with equipment substantially the same in nature.
3.13 Hazardous Substances.
3.13.1 For purposes of this Agreement, the term "Hazardous
Substances" means: (a) any substance, product, waste, or other material of
any nature whatsoever which is or becomes listed, regulated, or addressed
pursuant to the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 United States Code Section 9601 et seq.; the
Resources Conservation and Recovery Act, 42 United States Code Section 6901
et seq.; the Hazardous Materials Transportation Act, 49 Code of Federal
Regulations, Part 101 et seq.; the Clean Water Act, 33 United States Code
Section 1251 et seq.; the Toxic Substances Control Act, 15 United States Code
Section 2601 et seq.; the California Hazardous Waste Control Act, California
Health and Safety Code Section 25100 et seq.; the California Hazardous
Substance Account Act, California Health and Safety Code Section 25330 et
seq.; the California Safe Drinking Water and Toxic Enforcement Act, California
Health and Safety Code Section 25249.5 et seq.; California Health and Safety
Code Section 25280 et seq. (regarding underground storage of Hazardous
Substances); California Health and Safety Code Section 25100 et seq.
(regarding hazardous waste control); California Health and Safety Code Section
25501 et seq. (regarding hazardous materials release response plans and
inventories); and the California Porter - Cologne Water Quality Control Act,
California Water Code Section 13000 et seq., all as amended and as applicable
(the above cited California state statutes are hereinafter collectively referred to as
the "State Toxic Substances Law "); or any other applicable federal, state, or
local statute, law, ordinance, resolution, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct concerning
any Hazardous Substance, now or at any time hereinafter in effect; (b) any
substance, product, waste or other material of any nature whatsoever which may
give rise to liability under any of the above statutes or under any statutory or
common law theory based on negligence, trespass, intentional tort, nuisance or
strict liability or under any reported decisions of a state or federal court; (c)
petroleum or crude oil; and (d) asbestos.
3.13.2 Except as otherwise stated in this Agreement, City makes no
warranty or representation whatsoever concerning the City's Property, including
Site Name: FAIRGREEN 8
without limitation, the condition, fitness or utility for any purpose thereof, of any
improvements thereto with applicable laws, ordinances or governmental
regulations. Lessee's right to use the City's Property is strictly on an "as is" basis
effective as the Commencement Date with all faults. City hereby disclaims all
other warranties whatsoever, express or implied, the condition of City's Property,
the improvements thereon, soil (or water), geology, and any warranty of
merchantability or habitability or fitness for a particular purpose.
3.13.3 Except as otherwise specifically permitted under the terms of
this Agreement, Lessee shall not use, create, generate, store, dispose of or allow
any Hazardous Substances on, under, about or within the City's Property or
Leased Area in violation of any applicable federal, state, or local law, rule,
regulation, order, decree or other requirement listed in Section 3.13.1.
3.13.4 In no case shall Lessee cause or allow its contractors,
agents or employees to deposit or dispose of any such Hazardous Substances
on, under, about or within the City's Property or Leased Area in violation of
applicable law. Furthermore, no permanent underground storage tanks shall be
installed on the Leased Area or City's Property and any Hazardous Substances
used by Lessee on the City's Property shall be used in compliance with all
applicable law, rules and regulations. City acknowledges, however, that Lessee
shall be permitted to install, maintain and operate a diesel powered emergency
power generator with an above - ground, sub -base tank that is integrated as part
of the generator (i.e., not a stand -alone storage tank), in support of the
Communications Equipment and that Lessee shall be permitted to store within
the Leased Area, in compliance with all applicable laws, diesel fuel in connection
with such generator.
3.13.5 Subject to the notice provisions of Section 3.14, City and
City's officers, officials, employees, consultants, attorneys, contractors and
agents shall at all times have the right to go upon and inspect the City's Property
and the operations conducted thereon to assure compliance with the
requirements herein stated, provided such inspection does not interfere with
Lessee's operations and provided that City shall not have unsupervised access
to Lessee's Communications Equipment. This inspection may include taking
samples for chemical analysis of substances and materials present and /or testing
soils on the City's Property and taking photographs.
3.13.6 Lessee shall, within a reasonable time, either prior to the
release by Lessee, or following the discovery by Lessee, of the presence of, or
believed presence of, a Hazardous Substance as defined herein, give written
notice to City in the event that Lessee knows or has reasonable cause to believe
that any release of Hazardous Substance has come or will come to be located
on, under, about or within the City's Property. The City acknowledges, however,
that Lessee shall be permitted to utilize and maintain on the Property such
Hazardous Substances and Hazardous Substance containing materials typically
used in connection with communications facilities, such as sealed batteries,
Site Name: FAIRGREEN 9
petroleum hydrocarbons, an HVAC system, and a halon fire suppression system
and that the use and maintenance of such items in compliance with applicable
law shall not constitute a violation or breach of this Agreement.
The failure to disclose in a timely manner the release of such a
Hazardous Substance, including but not limited to, an amount which is required
to be reported to a state or local agency pursuant to law (e.g., California's
Hazardous Materials Storage and Emergency Response Act, Health and Safety
Code Section 25550 et seq.) shall, at City's option, constitute a default by Lessee
under this Agreement in addition to actual damages and other remedies provided
by law. Lessee shall immediately clean up and remove all Hazardous
Substances placed by Lessee on, under, about or within the City's Property, in a
manner that is in all respects in accordance with all applicable laws, rules,
regulations.
3.13.7 In the event Hazardous Substances on, under, about or
within the City Property are discovered by Lessee or Lessee's contractors or
agents, Lessee shall disclose to City the specific information regarding Lessee's
discovery and, to the extent the presence of such Hazardous Substances are
caused by Lessee, provide City with written documentation of its safe and legal
disposal.
3.13.8 Breach of any of these covenants, terms, and conditions
shall give City the authority to immediately terminate this Agreement. Lessee will
continue to be liable under this Agreement to remove and mitigate, to the
greatest extent required by applicable law, all Hazardous Substances placed by
Lessee on, under, about or within the City's Property. As between the City and
Lessee, Lessee shall be responsible for, and bear the entire cost of removal and
disposal of, all Hazardous Substances introduced to the City's Property by
Lessee during Lessee's period of use and possession of the City's Property. City
may pass through to Lessee any and all reasonable costs of removal and
mitigation or decontamination, on or off the City's Property, necessitated by the
presence of such Hazardous Substances placed on the City's Property by
Lessee. Upon termination of this Agreement, Lessee is required, in accordance
with all laws, to remove from the City's Property any equipment or improvements
placed on the City's Property by Lessee that could be contaminated by
Hazardous Substances in violation of applicable law. Notwithstanding the
foregoing, Lessee shall not be responsible for removal and mitigation of
Hazardous Substances brought onto the Property by Lessee to the extent their
release was caused by the negligence or misconduct of City, its officials,
employees, contractors or subcontractors.
3.13.9 Lessee shall defend, with counsel reasonably acceptable to
City, indemnify and hold City and City's officers, officials, employees, consultants,
attorneys, contractors and agents free and harmless from any and all claims,
liability, injury, damage, costs, or expenses (including, without implied limitation,
attorneys' fees and expenses) arising as a result of the presence or use of any
Site Name: FAIRGREEN 10
Hazardous Substances placed or caused to be placed by the Lessee or Lessee's
partners, affiliates, agents, officials, officers, contractors or employees on the
City's Property or Leased Area, except to the extent claims are caused by the
negligence or misconduct of City, its officials, employees, contractors or
subcontractors. The foregoing indemnity is intended to operate as an agreement
pursuant to, among other requirements, Section 107, subdivision (e) of CERCLA,
42 United States Code Section 9607, subdivision (e), and California Health and
Safety Code Section 25364, to insure, protect, defend, with counsel reasonably
acceptable to City, hold harmless and indemnify City from any liability created by
the Lessee pursuant to such sections. Lessee's obligations under this Section
3.13 shall survive termination or expiration of this Agreement with respect to acts
or events occurring prior to the effect date of such expiration or earlier
termination.
3.14 Entry by Owner. Lessee shall permit City to enter upon the
Leased Area with forty -eight (48) hours prior notice at any reasonable time for
the inspection thereof, or at any time in connection with any work which may be
required thereon, and City shall not be liable for any damage to Lessee's
personal property in the course thereof, unless caused by City's, or its officials',
employees' or contractors' negligence or willful misconduct. In no event shall the
City have unsupervised access to Lessee's Communications Equipment.
3.15 Intentionally omitted.
3.16 Assignment or Subletting. Lessee shall not assign this
Agreement or sublet all or any portion of the City's Property without City's
consent, which shall not, subject to Section 3.7 hereof, be unreasonably
withheld, conditioned or delayed, except that this Agreement shall inure to the
benefit of and be binding upon the heirs, executors, administrators, successors of
each party. Notwithstanding the foregoing, Lessee may assign this Agreement to
any parent, subsidiary or affiliate of Lessee or its parent company, or to any
entity that acquires all or substantially all of Lessee's assets in the market defined
by the FCC in which the City's Property is located by reason of a merger,
acquisition or other business reorganization (any such assignment being an
"Affiliate Transfer ") and shall give City at least thirty (30) days prior written
notice of any such assignment. Upon such assignment, Lessee shall be relieved
of all liabilities and obligations hereunder and City shall look solely to the
assignee for performance under this Agreement and all obligations hereunder
provided such assignee assumes all of Lessee's obligations hereunder in writing
and is at least as financially viable as Lessee at the time of assignment.
City hereby (a) consents to the collateral assignment of and
granting of a security interest from time to time in favor of any holder of
indebtedness borrowed by Lessee ( "Lender "), whether now or hereafter existing
in and to all Lessee's right, title and interest in, to and under this Agreement; (b)
agrees to simultaneously provide any Lender with a copy of any notice of default
under this Agreement sent to Lessee and allow Lender the opportunity to remedy
Site Name: FAIRGREEN 11
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or cure any default as provided for in this Agreement; and (c) agrees to recognize
Lender as if Lender were the lessee under this Agreement upon the written
election of Lender so long as any existing default by Lessee under this
Agreement has been cured as provided thereunder.
3.17 Taxes. The possessory property interest created by this
Agreement may be subject to property taxation, and Lessee may be subject to
the payment of property taxes levied on such interest by the appropriate taxing
authority. Lessee is required to pay any such tax directly to the appropriate
taxing authority. In addition, if personal property taxes are assessed, Lessee
shall pay any portion of such taxes directly attributable to the Lessee's Facilities.
City shall pay all real property taxes, assessments and deferred taxes on the
City's Property and Leased Area, if any.
3.18 Mechanic's Liens. Lessee shall keep the City's Property free from
any liens arising out of any work performed, material furnished, or obligations
incurred by Lessee, or any tenant or subtenant thereof and shall discharge or
bond mechanic's liens within thirty (30) days of Lessee's receipt of notice from
City.
3.19 Waiver. The waiver by City or Lessee of any breach of any term,
covenant, condition or provision contained herein ( "Conditions ") shall not be
deemed to be a waiver of such Conditions for any subsequent breach of the
same or any other Conditions contained herein. The subsequent acceptance of
consideration by City shall not be deemed to be a waiver of any preceding
breach by Lessee of any Conditions of this Agreement, other than the failure of
Lessee to pay the particular consideration so accepted, regardless of City's
knowledge of such preceding breach at the time of acceptance of such
consideration.
3.20 Attorneys' Fees. The prevailing party in any action brought by
either party hereto, based on any claim arising under this Agreement, shall be
entitled to reasonable attorneys' and /or consultants' fees.
3.21 Liability Insurance. Lessee shall procure and maintain for the
duration of this Agreement insurance against claims for injuries to personal or
damages to property which may arise from or in connection with this Agreement
by the Lessee, Lessee's agents, representatives, employees or subcontractors.
Lessee shall obtain and furnish to City proof of coverage as to each type of
insurance required.
3.21.1 Minimum Scope of Insurance. Coverage shall be at least
broad as:
3.21.1.1 Commercial General Liability: Insurance Services
Office Commercial General Liability coverage (occurrence) form CG 0001, or its
substantial equivalent.
Site Name: FAIRGREEN 12
3.21.1.2 Automobile Liability: Insurance Services Office
Business Auto Coverage form number CA 0001, code 1 (any auto), or its
substantial equivalent.
3.21.1.3 Workers' Compensation and Employers' Liability:
Workers' Compensation Insurance as required by the Labor Code of the State of
California and Employers Liability Insurance.
3.21.2 Minimum Limits of Insurance. Limits of insurance shall
be:
3.21.2.1 Commercial General Liability: $1,000,000
combined single limit per occurrence for bodily injury, and property damage. If
commercial General Liability Insurance or other form with a general aggregate
limit is used, either the general aggregate limit shall apply separately to this
location or the general aggregate limit shall be twice the required occurrence
limit.
3.21.2.2 Automobile Liability: $1,000,000 combined single
limit per accident for bodily injury and property damage.
3.21.2.3 Workers' Compensation and Employers Liability:
Workers' Compensation limits as required by the Labor Code of the State of
California, Employers Liability limits of $1,000,000 per accident. Lessee's
Employers Liability Insurance, shall include occupational disease coverage for
Lessee and all persons and /or subcontractors employed or to be employed in the
performance of this Agreement. Lessee's insurance shall at all times be
maintained in strict accordance with this Agreement, and the provisions of
Section 3700 et seq. of the Labor code which requires every employer to be
insured against liability for Worker's Compensation or to undertake self- insurance
in accordance with the provisions of the Code. Use by Lessee of "Workers'
Compensation Waiver" forms will necessitate the filing of said waiver with City for
each individual by Lessee prior to that individual commencing any work under
this Agreement. Failure to comply with this requirement may result in termination
of this Agreement at City's sole discretion.
3.21.3 Deductibles. Self- insured retentions shall be declared to
and shall be subject to approval by City, which approval shall not be
unreasonably withheld. Notwithstanding the foregoing, Los Angeles SMSA
Limited Partnership d /b /a Verizon Wireless shall not be obligated to comply with
this Section 3.21.3. This Section 3.21.3 shall, however, apply to any and all
assignees of Los Angeles SMSA Limited Partnership d /b /a Verizon Wireless,
including in the event of an Affiliate Transfer.
3.21.4 Provisions. The insurance policies shall contain provisions
to the following effect:
Site Name: FAIRGREEN 13
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3.21.4.1 General Liability: (1) The City, City's officers,
officials, employees, consultants, attorneys, contractors and agents shall be
covered as additional insureds with respect to the use of the Leased Area or any
activities on the City's Property by the Lessee or Lessee's employees, agents or
contractors; and (2) the insurance coverage shall be primary insurance for any
claims arising out of negligence or willful misconduct on the part of the Lessee,
as respects the City, City's officers, officials, employees, consultants, attorneys,
contractors and agents, or if excess, shall stand in an unbroken chain of
coverage excess of Lessee's scheduled underlying coverage. Any insurance or
self- insurance maintained by the City, City's officers, officials, employees,
consultants, attorneys, contractors and agents shall be excess of Lessee's
insurance and shall not be called upon to contribute with it in any way with regard
to claims caused by the negligence or willful misconduct on the part of the
Lessee.
3.21.4.2 Automobile Liability: (1) The City, City's officers,
officials, employees, consultants, attorneys, contractors and agents shall be
covered as additional insureds with respect to the ownership, operation,
maintenance, use, loading or unloading of any auto owned, leased, hired or
borrowed by Lessee or for which Lessee is responsible; and (2) the insurance
coverage shall be primary insurance, as related to Lessee's operations. Any
insurance or self- insurance maintained by the City, City's officers, officials,
employees, consultants, attorneys, contractors and agents shall be excess of
Lessee's insurance and shall not be called upon to contribute with it in any way
with respect to Lessee's operations.
3.21.4.3 Workers' Compensation and Employers Liability
Coverage: The insurer shall agree to waive all rights of subrogation against the
City, City's officers, officials, employees, consultants, attorneys, contractors and
agents for losses paid under the terms of the insurance policy which arise from
work performed by Lessee.
3.21.4.4 All Coverages: Each insurance policy required by
this Agreement 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 City (10 days notice shall apply to cancellation
based on non - payment); and (2) any errors or omissions by Lessee shall not
affect coverage provided to the City, City's officers, officials, employees,
consultants, attorneys, contractors and agents.
3.21.5 Separation of Insureds. All general and automobile liability
insurance required by this Section shall contain standard separation of insureds
provisions. In addition, the scope of protection such insurance affords to the City
or City's officers, officials, employees, consultants, attorneys, contractors and
agents shall be commercially reasonable.
Site Name: FAIRGREEN 14
3.21.6 Verification of Coverage. Prior to City's execution of this
Agreement, Lessee shall furnish City with Certificates of Insurance evidencing all
insurance policies required hereunder, with blanket additional insured
endorsements to be accepted as an alternative. City may also make reasonable
requests for same during the Term.
3.21.7 Acceptability of Insurers. All insurance shall be provided
by insurers having a current A.M. Best's rating of A -:VII or better and reasonably
acceptable to City.
3.21.8 City Insurance. The City shall procure and maintain for the
duration of this Agreement commercial general liability insurance (or shall
participate in a self- insurance risk sharing pool as authorized by California law)
with limits not less than $1,000,000 for injury to or death of one or more persons
in any one occurrence and $500,000 for damage or destruction to property in any
one occurrence. City will include Lessee as an additional insured.
3.22 Assumption of Risk. Except to the extent caused by City or its
agents, contractors, employees or subcontractors, Lessee assumes all risk of
loss to itself, which in any manner may arise out of Lessee's use of the City's
Property under this Agreement.
3.23. Indemnity. Lessee hereby agrees to defend, with counsel
reasonably acceptable to City, indemnify and hold City and City's officers,
officials, employees, consultants, attorneys, contractors and agents free and
harmless from and against any and all claims, demands, causes of action, costs,
liabilities, expenses, losses, damages or injuries of any kind in law or equity,
including the payment to City of all reasonable expenses of legal representation,
whether by special counsel or by City's staff, to persons or property, including
wrongful death, to the extent caused by the negligent acts, omissions or willful
misconduct of Lessee, Lessee's partners, affiliates, agents officials, officers or
employees in connection with this Agreement. City must give Lessee prompt
notice of any claim. Lessee shall defend, with counsel reasonably acceptable to
City and at Lessee's sole expense, any and all aforesaid suits, actions or
proceedings, legal or affirmative, that may be brought or instituted against City,
City's officers, officials, employees, consultants, attorneys, contractors and
agents. Lessee shall pay and satisfy any judgment, award or decree that may be
rendered against City, City's officers, officials, employees, consultants, attorneys,
contractors and agents resulting from such suits, except to the extent determined
to be caused by the negligence or willful misconduct of City or City's officers,
officials, employees, consultants, attorneys, contractors and agents. Lessee
shall reimburse such parties for any and all legal expenses and costs incurred by
one or all of them in connection with this Agreement or the indemnity herein
provided if Lessee is in breach of this Section. Lessee's obligation shall survive
termination or expiration of this Agreement, and shall not be restricted to
insurance proceeds, if any, received by City or City's officers, officials,
employees, consultants, attorneys, contractors and agents.
Site Name: FAIRGREEN 15
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3.24 Amendments. The provisions of this Agreement may be amended
only by mutual written consent of both parties.
3.25 No Relocation Assistance. Lessee agrees that with respect to
any leasehold estate created under this Agreement, Lessee shall not be entitled
to relocation assistance or any other benefits under the Uniform Relocation
Assistance Act, 49 Code of Federal Regulations, Part 24 et seq., or any other
similar provision of law upon termination to this Agreement.
3.26 Time. Time is of the essence of this Agreement.
3.27 Notices. All notices permitted or required under this Agreement
shall be given to the respective parties at the following address, or at such other
address as the respective parties may provide in writing for this purpose:
LESSEE:
CITY:
Los Angeles SMSA Limited Partnership
d /b /a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
(Site Name: Fairgreen)
City of Arcadia
Public Works Services Department
11800.Goldring Road
Post Office Box 60021
Arcadia, CA 91066 -6021
Attn: Public Works Services Director
Such notice shall be deemed made when personally delivered, forty -eight
(48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the party at its applicable address, or upon receipt or refusal as
shown on a receipt in connection with delivery by commercial courier.
3.28 Entire Agreement. 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.
3.29 Invalidity. 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.
Site Name: FAIRGREEN 16
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3.30 Successors and Assigns. Except as provided in this Agreement,
the terms and conditions of this Agreement shall be binding on and inure to the
benefit of the successors and permitted assignees of the respective parties.
3.31 Governing Law and Venue. This Agreement shall be governed by
the laws of the State of California. Any action to interpret or enforce this
Agreement may be maintained in the courts located in Los Angeles County,
California.
3.32 Exhibits. All Exhibits attached hereto form material parts of this
Agreement.
3.33 Counterparts. This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original.
3.34 Survival. All obligations of Lessee hereunder not fully performed
as of the completion or termination of this Agreement shall survive such
completion or termination, including without limitation all payment obligations and
all obligations concerning the condition of the Leased Area and City's Property.
3.35 No Discrimination. Lessee certifies and agrees that all persons
employed by Lessee, Lessee's affiliates, subsidiaries, or holding companies and
any of Lessee's contractors retained with respect to the City's Property are and
shall be treated by Lessee equally without regard to or because of race, religion,
ancestry, national original or sex, and in compliance with all federal and state
laws prohibiting discrimination in employment.
3.36 Memorandum of Lease. Each party agrees to cooperate with the
other in executing any documents (including a Memorandum of Lease in
substantially the form attached hereto as Exhibit B) necessary to protect its rights
or use of the Leased Area or City's Property.
3.37 Waiver of City's Lien. City hereby waives any and all lien rights it
may have, statutory or otherwise, concerning Lessee's Facilities or any portion
thereof, which shall be deemed personal property for the purposes of this
Agreement, whether or not the same is deemed real or personal property under
applicable laws, and City gives Lessee and Lenders the right to remove all or any
portion of the same from time to time, whether before or after a default under this
Agreement, in Lessee's and /or Lenders' sole discretion and without City's
consent.
3.38 Expiration of Offer to Lease. This Agreement must be fully
executed by October 7, 2011. If not so executed, all offers contained herein shall
expire and become null and void.
[SIGNATURES FOLLOW]
Site Name: FAIRGREEN 17
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In witness whereof, the parties hereto have set their hands and affixed
their respective seals effective as of the day and year last written below
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CITY OF ARCADIA Los Angeles SMSA Limited Partnership
d /b /a Verizon Wireless
By: qj'Day,#--�
Donald Penman
City Manager
Approved as to form:
By:
Stephen P. Deitsch
City Attorney
Site Name: FAIRGREEN 18
By: AirTouch Cellular, its General Partner
Name: VValter L.
Title: Area Vice
Date: _I/
Jr.
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COMMUNICATIONS SITE LEASE AGREEMENT
EXHIBIT "A"
DEPICTION OF LEASED AREA
AND FACILITIES
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Fairgreen Camino Grove Park.
Site Name: FAIRGREEN 19
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COMMUNICATIONS SITE LEASE AGREEMENT
EXHIBIT "B"
MEMORANDUM OF LEASE
See attached.
Site Name: FAIRGREEN 20
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
McGuireWoods LLP
1800 Century Park East, 8th Floor
Los Angeles, California 90067
Attn: Lynn A. Whitcher
(Site Name: Fairgreen)
MEMORANDUM OF LEASE
This Memorandum of Lease ( "Memorandum ") dated as of
2011, is entered into between the City of Arcadia
(hereinafter referred to as "City "), a municipal corporation, and Los Angeles
SMSA Limited Partnership, a California limited partnership, d /b /a Verizon
Wireless ( "Lessee ") regarding a portion of the property, which is owned by City,
generally located at 1410 South 6th Street, in the City of Arcadia, County of Los
Angeles, State of California, identified as Assessor's Parcel Number
5780 - 012 -904 and Assessor's Parcel Number 5780 - 012 -906 ( "City's Property "),
as legally described on Exhibit "A" attached hereto and incorporated herein by
reference.
This Memorandum evidences that, pursuant to that certain
Communications Site Lease Agreement ( "Lease ") between the parties, City has
leased a portion of City's Property to Lessee.
The Lease is for a term of sixty (60) calendar months commencing upon
the first day of the second month following the Execution Date (as defined in the
Lease). Lessee shall have the right, as set forth more fully in the Lease, to
extend the Lease for four (4) additional, five (5) year terms.
This Memorandum is solely for the purpose of giving notice of the Lease.
In the event of a conflict between the terms of the Lease and this Memorandum,
the terms of the Lease shall control.
[SIGNATURE PAGE FOLLOWS]
31606982.1
Site Name: FAIRGREEN
en
IN WITNESS WHEREOF, the parties hereto have respectively executed
this memorandum effective as of the date of the last party to sign.
LANDLORD: City of Arcadia
By:
Name: Donald Penman
Its: City Manager
Date:
TENANT: Los Angeles SMSA Limited
Partnership d /b /a Verizon Wireless
By: AirTouch Cellular, its General Partner
By:
Name: Walter L. Jones, Jr.
Title: Area Vice President Network
Date:
31606982.1
Site Name: FAIRGREEN
,%me
EXHIBIT A
Legal Description of the City Property
The Premises are located Dn8 portion Of that certain real property located in the
County OfLos Angeles, State of California, being more particularly described as
.411 that certain real property sif.-uated in the County of Los Angeles, State of
California, described asfmUovva:
Parcel A: 5788-012-904
Parcel 1:
The West 220.g2feet of the South 92.5 feet of the North 185feet of Lot 60 of
Tract No, 8,08, in the City of Arcadia, County of Los Angeles, State of California
as per map recorded in Rook 16, Pages 02and 83oK Maps, in the Off-ice ofthe
County Recorder of said County.
Parcel 2:
That portion ofLot 6Qof Tract No. 8O8,in the 0tyof Arcadia, County mfLos
Angeles, State of California, as per map recorded in Gook 16, Pages 02 and 83 of
Mapn,intbeQfficeoftheCoumtyRecorderofsaidCountY,describedasfo0ovvs:
Beginning at a point in the VVesterIfy line of said Lot 00, distant Southerly 185
feet from the Northwest corner of said Lot; thence Easterly parallel witth the
Northerly line of said Lot, 440.92 feet to a point in the East line thereof; thence
Southerly along said East line, 921.5 feet; thence Westerly parallel with said
Northerly fine, 440.02 feet to a point in the Westerly line of said Lot; thence
Northerly along Sixth Avenue, 9Z.5 feet tm the point afbeginning.
Except therefrom the Easterly 2220 feet.
Parcel 3/
That portion of Lot O0mf Tract No. BU8,io the City uf Arcadia, County ofLos
Angeles, State mf California, as per map recorded in Book l5, Pages, 82 and O3uf
Maps, in the Qfficeof the County Recorder of said County, described aafoBows:
Beginning ata point in theWestedy line ofsaid Lot 60, 277.5 feet South of the,
Northwest comer of said Lot; thence Easterly 440.92 feet parallel with the
Northerly fine thereof; thence Southerly y2.5 feet along the Easterly line; thence
Westerly parallel 'with the Northerly line ofsaid Lot, 440.92 feet to a point in the
Westerly line of said Lot; thence Northerly 92.5 feet along Sixth Avenue, to the
pointofbeginning-
El-ceptde East 220 feet thereof.
Alsoexcepdmg therefrom the South 12,50 feet
31606982.1
Site Name: FAImGRsEw
v%_, ~~_1
Parcel B: 5780-012-906
That portion of Lot 00nf Tract No. 8Q0,hnthe City of Arcadia, County ofLos
Angeles, State of California, as per map recorded in Book 16, Pages 82 and 83 of
Maps, in the Office of the County Recorder of said County, described as follows:
Beginning at a point in the Westerly me of Lot 60, distant Southerly 370 feet
from the Nurthwesbedy cornerofsaid Lot, said point being the Southwest corner
of the land described in the deed to Alfred Gellert, recorded in Book 0008, Page
256, Official Records of said County; thence Easterly along the Southerly line of
said land of Gellert, 44O.A2 feet to the Easterly line of said Lot 60; thence
Southerly along the Easterly line, 92.50 feet to the Southeasterly corner of said
Lot; thence Southerly along the Southerly line of said Lot 60,44O.02 feet tothe
Southwesterly corner of said Lot, thence Northerly along the Westerly line of said
Lot 60, g2,50 feet tnthe point m[beginning.
Ex'cept the East half thereof.
APN: 5780-012-904 and 5780-012-906
31606982.1
Site Name: FAIRGREEN
� ..
COMMUNICATIONS SITE LEASE AGREEMENT
EXHIBIT "C"
LEGAL DESCRIPTION OP THE CITY PROPERTY
All that ceitain real property situated im the County of Los Angeles, State of
California, described as follows:
Parcel A: 5780'012'904
Parcel 1�
The West 220.02 feet of the South 02.5 feet of the Worth 185 feet ofLot dD of
Tract No. 808, in the City of Arcadia, County of Los Angeles, State of California,
as per map recorded in Book 16, Pages 82 and 83 of Naps, in the office of the
County Recorder of said County,
Parcel 2:
That portion of Lot 60 of Tract Nu. 008, in the City of Arcadia, County of Los
Angeles, State of California, as per map recorded in Book 16, Pages 82 and 83 of
Maps, in the Office of the County Recorder n[ said County, described as follows:
Beginning at point in the Westerly line of said Lot 60, distant Southerly 185
feet from the Northwest corner of said Lot, thence Easterly parallel with the
Northerly line of said Lot, 440.92 feet to a point in the East line thereof; thence
Southerly along said East line, 92.5 feet; thence Westerly parallel with said
Northerly fine, 440.92 feet to a point in the Westerly line of said Lot; thence
Northerly along SCxth Avenue, 02.5 feet tuthe point of beginning.
Except therefrom the Easterly 22Dfeet.
Parcel 3:
That portion of Lot 50 of Tract Nn. 808, in the City of Arcadia, County of Los
Ange4es, State of California, as per map recorded in Book 16, Pages 02and 03 of
Maps, In the Office ofthe County Recorder ofsaid County, described as follows:
Beginning ata point inthe Weste-dy line of said Lot dO,277.5feet South of the
Northwest corner of said Lot; thence Easterly 440.g2 feet parallel with the
Northerly line thereof thence Southerly 92.5 feet along the Easterly line; thence
Westerly parallel with the Northerly line mfsaid Lot, 440.02 feet to a point in the
Westerly line of said Lot; thence Northerly 02.5 feet along Six�h Avenue, to the
point nfbeginning.
Except the East 220 feet thereof,
Also excepting therefrom the South 12.50 feet.
Site Name: FA|mGnsew 26
~
�
Parcel B: 5780-012-906
That portion of Lot 8Oof Tract No, 8Q8,imthe City of Arcadia, County ofLos
Angeles, State of California, as per map recorded in Book 16, Pages 02and 83 of
Maps, in the Office of the County Recorder mfsaid County, described as follows:
Beginning ata point in the Westerly line of Lot 5O, distant Southerly 370 feet
from the Northwesterly corner of said Lot, said point being the Southwest corner
of the land described in the deed to Alfred Gellert, recor-d4-zd in Book 6898, Page
256, Official Records of said County; thence Easterly along the Southerly line of
said land of Gellert, 440.92 feet to the Easterly line of said Lot 60| thence
Southerly along the Easterly line, 92.50 feet to the Southeasterly corner of said
Lot; thence SoutheMy along the Southerly line of said Lot 60, 440.92 feet to the
Southwesterly corner of said Lot, thence Northerly along the Westerly line ofsaid
Lot 60, 02.50 feet to the point of beginning,
Except the East half thereof,
Site Name: FAIRGREEN 27
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
McGuireWoods LLP
1800 Century Park East, 8th Floor
Los Angeles, California 90067
Attn: Lynn A. Whitcher
(Site Name: Fairgreen)
MEMORANDUM OF LEASE
-�- This Memorandum of Lease ( "Memorandum ") dated as of
yz .r e- , 2011, is entered into between the City of Arcadia
(hereinafter referred to as "City "), a municipal corporation, and Los Angeles
SMSA Limited Partnership, a California limited partnership, d /b /a Verizon
Wireless ( "Lessee ") regarding a portion of the property, which is owned by City,
generally located at 1410 South 6th Street, in the City of Arcadia, County of Los
Angeles, State of California, identified as Assessor's Parcel Number
5780 - 012 -904 and Assessor's Parcel Number 5780 - 012 -906 ( "City's Property "),
as legally described on Exhibit "A" attached hereto and incorporated herein by
reference.
This Memorandum evidences that, pursuant to that certain
Communications Site Lease Agreement ( "Lease ") between the parties, City has
leased a portion of City's Property to Lessee.
The Lease is for a term of sixty (60) calendar months commencing upon
the first day of the second month following the Execution Date (as defined in the
Lease). Lessee shall have the right, as set forth more fully in the Lease, to
extend the Lease for four (4) additional, five (5) year terms.
This Memorandum is solely for the purpose of giving notice of the Lease.
In the event of a conflict between the terms of the Lease and this Memorandum,
the terms of the Lease shall control.
[SIGNATURE PAGE FOLLOWS]
Site Name: FAIRGREEN 21
IN WITNESS WHEREOF, the parties hereto have respectively executed
this memorandum effective as of the date of the last party to sign.
LANDLORD: City of Arcadia
By: ->e-r�. -��
Name: Donald Penman
Its: City Manager
Date: SM e- t Sf 02,b11
TENANT: Los Angeles SMSA Limited
Partnership d /b /a Verizon Wireless
By: AirTouch Cellular, its General Partner
ittarffie:Walfer L. Jdn71,
, Jr.
Title: Area Vice resent Network
Date: '� Z
Site Name: FAIRGREEN 22
COMMUNICATIONS SITE LEASE AGREEMENT
EXHIBIT "C"
Legal Description of the City Property
The Premises are located on a portion of that certain real property located in the
County of Los Angeles, State of California, being more particularly described as
follows:
All that certain real property situated in .he County of Los Angeles,. State of
California, described as follows:
Parcel A: 5780 -012-904
Parcel 1:
The West 220.92 feet of the South 92.5 feet of the North 185 feet of Lot 60 of
Tract No. 808, in the City of Arcadia, Co.inty of Los Angeles, State of California,
as per map recorded in Book 16, Pages 82 and 83 of Maps, in the Office of the
County Recorder of said County.
Parcel ?:
That portion of Lot 69 of Tract No. 808, in the City of Arcadia, County of Los
Angeles, State of California, as per map recorded in Book 16, Pages 82 and 83 of
Maps, in the Office of the County Recorder of said County, described as follows:
Beginning at a point In the Westerly line of said Lot 60, distant Southerly 185
feet frorn the Nortfiv.est corner or said Lot; thence Easterly parallel with the
Northerly line of said Lot, 440.42 feat to a point in the East Fine thereof; thence
Southerly along said East line, 92.5 feet; thence Westerly parallel with said
Northerly line, 440.92 feet to a point in the Vdesterly fine of said Lost; thence
Northerly along Si: >:th Avenue, 92.5 feet to the point of beginning.
Except therefrom the Easterly 220 feet.
Parcel 3:
That portion, of Lot 60 of Tract No. 808, in the City of Arcadia, County of Los
Angeles, State of California, as per map recorded in Book 16, Pages 82 and 83 of
Maps, in the Office of the County Recorder of said County, described as follows:
Beginning at a point in the Westerly line of said Lot 60, 277.5 feet South of the
Northwest corner of said Lot; thence Easterly 440.92 feet parallel with the
Northerly line thereof; thence Southerly 92.5 feet along the Easterly line; thence
Westerly parallel with the Northerly line of said Lot, 440.92 feet to a point in the
Westeriy line of said Lot; thence Northerly 92.5 feet along Si :th Avenue, to the
point of beginning.
E,:xept the East 220 fee: thereof.
Also e:;cepting therefrom the South 12.50 feet
Site Name: FAIRGREEN 23
Parcel B: 5780-812-906
That portion of Lot 6Qof Tract. No. 80-8, in the of -Ja,[OuntVofLos
Ar0eles Stwle ofCa|[fornia, as pernlap recorded -in Book 16, Pages 82 and 83 of
Maps, in the Office of the CVuoty Reoorderofsaid County, described asfo;iows:
Beginning at a point in the VVestedy line of Lot 60, distant Suuther|y 370 feet
from the No/-thvvester|y corner of said Lot, said point being the Southwest corner
uf the land described in the deed to Alfred Gellert, recorded in Book 6898, Page
256, Official Records of said County; thence Easterly along dhe SmuthedV line of
said land ofGe||e|-t, 448.92 feet to the Easter|Y line of said Lot 68| thence
Southerly along the Easterly line, 92.50 feet to the Southeasterly curneruf said
Lot; thence Southerly along the Souther|y line of said Lmz 60, 440.92 feet to the
Southwesterly cmrnerofsaid Lot; thence Northerly along the Westerly line of said
Lot 60, 02.50 feet to the point of beginning.
Except the Ea5t half thereof,
APN: 5780-012-904 and 5780-012-906
Site Name: FmmGnEEw
`'s
STATE OF CALIFORNIA )
)SS.
COUNTY OF A� )
On \� , 20, � before me, \A cm-k &o, notary
public, personally appeared �)c q\(.kkc'� er�+�nenn who proved to me on the
basis of satisfactory evidence to be the person() whose name(§, is /are subscribed to
the within instrument and acknowledged to me that he /she /they executed the same in
his /ho/their authorized capacity(V), and that by his /hRr /their signature(8) on the
instrument the person(), or the entity upon behalf of which the personN) 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.
MARINA SIMONIAN
Commission # 1932419 z
•� Notary Public - California
Los Angeles County
M Comm. Expires May 9, 2015
(Place Notary Seal above)
STATE OF CALIFORNIA )
)SS.
COUNTY OF )
WITNESS my hand and official seal.
Signatu of Notary Public
On 20 �� efore me, -TI xc� km') 6Hm ,notary
public, personally appeared X Z.- 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.
TRICSHA K. VILLALTA
Commission # 1814222 z
z
d Notary Public - California zz
z Orange County
' M Comm. Expires Sep 20, 2012
(Place Notary Seal above)
Site Name: FAIRGREEN 25
WITNESS my hand and official seal.
Signature of Notary Public