HomeMy WebLinkAboutC-2249SENT BY CERTIFIED MAIL
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City of Arcadia
11800 Goldring Rd
PO Box 60021.
Arcadia, CA 91066 -6021
October 11, 2012
T- Mobile Site ID: IE04866C
Re: The lease for the premises located at or about 1153 De Anza Place, Upper San Gabriel Va, CA
91007 (the "Lease "), and the transfer of the Lease to T- Mobile Tower West LLC
Dear Landlord:
On September 28, 2012, T- Mobile USA, Inc., ( "T- Mobile ") entered into a Master Agreement
( "Master Agreement ") with Crown. Castle International Corp., ( "Crown ") regarding Crown's management
and operation of the T- Mobile tower portfolio, which your site is a part of.
T- Mobile expects this transaction with Crown to close approximately at the end of November, 2012.
Pursuant to the terms of the Master Agreement, T- Mobile will, at Closing, transfer the Lease to T- Mobile
Tower West LLC. T- Mobile Tower West LLC will grant Crown the right to manage and operate the site at
the above premises by entering into a master lease (basically a sublease). T- Mobile Tower West LLC will
remain the owner of the rights, title and interest in and to this site. Additionally, T Mobile will continue to
maintain its communications facilities on the site.
This letter asks that you please confirm your consent to the master lease with Crown, as it relates
to this Lease, by signing this letter and returning it in the enclosed self - addressed envelope. T-
Mobile /Crown will then send you a follow -up letter with further details around the time of Closing.
Thank you for your prompt attention to this matter. If you have any questions about this request,
please e -mail us at propertymanagement @t- mobile.com.
Sincerely,
Allan Tantillo
Director, Titan Towers
CONCUR:
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Public Works
Services Director
PG70559 Date: October F16, 2012
Acknowledged and Consented:
Authorized Signatory
Print Name: Dominic L azzaretto
City Planager
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Date: JQrwe_z, �Q_
w wMob'lee
3257 E. Guasti Rd.
Ontario, CA 91761
July 26, 2012 Theodore.Tsagris2 @t- rnobile.com
City of Arcadia
11800 Goldring Rd.
Arcadia, CA 91006
Attn: Public Works Service Department
Re: T- Mobile Site #: IE054071;
EXHIBIT 1
DESCRIPTION OF T- MOBILE SCOPE OF WORK
Proposed T- Mobile scope of rvork:
1. Replace antennas
2. Install hybrid cables
3. Replace tower mounted amplifiers
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CITY OF ARCADIA
COMMUNICATIONS SITE LEASE AGREEMENT
WITH OMNIPOINT COMMUNICATIONS, INC.
1. PARTIES AND DATE.
This Communications Site Lease Agreement ( "Agreement ") is made and entered into
thi43!hL day of M4ff _, 200_T ( "Effective Date ") by and between the City of Arcadia
(hereinafter referred to as "City"), a municipal corporation, and Omnipoint Communications,
Inc., (hereinafter referred to as "Lessee "), a Delaware corporation, a subsidiary of T- Mobile
USA, Inc., a Delaware corporation. The City and Lessee are sometimes collectively referred to
herein as the "Parties."
2. RECITALS.
2.1 Description of Leased Land. The City is the owner of a piece of land generally
located at 375 Campus Drive, County of Los Angeles, identified as APN: 5775- 024 -917
( "City's Property"). City would like to allow the Lessee to use and the Lessee would like to
use approximately four hundred eighty -seven (487) square feet of the City's Property for its
equipment shelter, monopine, and antennas, as well as all necessary space and easements for
access and utilities as more particularly depicted on Exhibit "A" attached hereto and
incorporated herein by reference ( "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. In the event Lessee's Facilities fail to operate, Lessee may
have immediate access to the Leased Area, provided such access does not disrupt City activities.
The Right of Access will be located in those portions of the City's Property that are specifically
designed for access, ingress, and egress to the Leased Area.
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 and operating the Lessee's
Facilities, as defined below, to provide mobile /wireless communications services only to
Lessee's customers and no other communication services or other technology support.
3.2 Term. The term ( "Term ") of this Agreement shall be for sixty (60) calendar
months commencing upon the earlier of (a) October 1, 2007, or the date Lessee commences
construction of Lessee's Facilities (the "Commencement Date ") and expiring on the date that is
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sixty (60) calendar months later. This Agreement may be terminated in accordance with the
provisions of Section 3.10 herein.
3.3. Option to Renew. Provided Lessee is not in default under any of the'terms of
this Agreement, Lessee shall have the option to renew this Agreement on the terms and
conditions herein contained for five (5) additional five (5) year periods, which renewal shall be
deemed to be automatically exercised by Lessee 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 preceding term.
If Lessee exercises the option to renew the Agreement, the Agreement shall be renewed for the
additional term. The consideration payable for the additional 5 -year periods shall be in
accordance with the provisions of Section 3.7 herein.
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, microwave dishes, tower and base, equipment shelters
and/or cabinets and related cables and utility lines and a location based system, including,
without limitation, antenna(s), coaxial cable, base units, location based systems, all ancillary
wiring, cabling, mounting hardware and associated equipment (collectively, "Lessee's
Facilities "). The Lessee Facilities shall be used to provide mobile /wireless communications
services, and for no other purposes. A schematic of the Lessee's Facilities ( "Schematic ") is
attached as Exhibit "A" hereto and incorporated herein by reference. 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, to the reasonable satisfaction and approval of City, 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.
Title to the Lessee's Facilities shall be held by Lessee. Lessee's Facilities shall remain Lessee's
personal property and are not fixtures. Lessee shall remove to a depth of at least one foot (1')
below grade all of Lessee's Facilities at Lessee's sole expense within sixty (60) days of the
expiration or earlier termination of the Agreement, and shall repair any damage to the City's
Property or Leased Area caused by such removal. Lessee shall restore the City's Property and
Leased Area to their original condition, reasonable wear and tear excepted as discussed in
Paragraph 3.10.4. If Lessee shall not restore the City's Property and Leased Area, City may
proceed with such work, at Lessee's sole cost and expense, and assume title and ownership to the
Lessee's Facilities.
3.4.2 Lessee shall pay for any utilities and services required for the
Communication Equipment. 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
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grants Lessee an easement in, under and across the City's Properly adequate to install and
maintain utilities, which include, but are not limited to, the installation of power and telephone
service cable.
3.4.3 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 the
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, Lessee shall
pay to the City an amount equal to One Hundred Nineteen Thousand and Seven Hundred Dollars
($119,700) for the Term of this Agreement, payable in monthly installments of One Thousand
Nine Hundred Ninety -five Dollars ($1,995.00) each (the "Monthly Payments "). The first
Monthly Payment shall by paid within fifteen (15) business days following the Commencement
Date of this Agreement, prorated as appropriate for a partial month. Subsequent Monthly
Payments shall be payable on or before the fifth (5th) day of each calendar month. If this
Agreement is terminated at any time other than the last day of a month, Rent shall be prorated as
of the date of termination.
3.7 Future Consideration. At the commencement of each Renewal Term, the
consideration shall be increased by an amount equal to fifteen percent (15 %) of the consideration
in effect for the previous Term.
3.8 Payments. All payments shall be made payable to: City of Arcadia, 11800
Goldring Road P.O. 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 consideration 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 %) of such
overdue amount, as well as interest on the outstanding amount which shall accrue at the rate of
ten percent (10 %) per annum. 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.
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3.10 Termination.
3.10.1 Termination By Lessee. This Agreement may be terminated at any time
by Lessee: (a) upon thirty (30) days prior written notice if the Leased Area or Lessee's Facilities
are, or become unacceptable under Lessee's design or engineering specifications for Lessee's
Facilities or the communications system to which Lessee's Facilities belong; (b) 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, an FCC
license), permit or any Governmental Approval necessary to the installation and/or operation of
Lessee's Facilities or Lessee's business; (c) 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, Lessee's partners, affiliates, agents, officials, officers or employees. If this Agreement is
not terminated, then Rent shall abate in proportion to the extent Tenant is unable to use the
Leased Area; (d) 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 (e) upon thirty (30) days prior written notice by Lessee if
Lessee determines that the Leased Area or Lessee's Facilities are inappropriate or unnecessary
for Lessee's operations due to economic reasons. Notice is to be deemed given upon the mailing
thereof, postage prepaid, to the City at City's address set forth below.
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 of the last day of the Term. City may keep, or dispose of, at Lessee's expense,
any real or personal property not so removed. In the event of termination by either party,
improvements shall be removed within sixty (60) days of the date of written notice of
termination. City shall be the sole owner of improvements remaining on the City's Property
after said sixty (60) days.
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
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the City's Property was delivered to Lessee, reasonable wear and tear and damage excepted.
Lessee agrees to pay reasonable clean-up costs incurred by City.
3.11 Interference.
3.11.1 Lessee shall operate Lessee's Facilities in a manner that will not cause
interference to City or City's use of the City's Property, as well as to other licensees or licensees
of the City's Property, provided that the installations of such licensees or licensees 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 Federal Communications Commission's ( "FCC ") requirements, as well as other
applicable Federal, State and local laws, rules and regulations. In the event interference occurs,
Lessee agrees to take all reasonable steps necessary to eliminate such interference promptly. If
Lessee cannot eliminate such interference, City shall have the right to terminate this Agreement
pursuant to Section 3.10.2.
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 interferes
with the operations of Lessee. Such interference shall be deemed a material breach by the
interfering party, who shall upon written notice from the other, be responsible for terminating
said interference. In the event any such interference does not cease promptly, the injured party
shall have the right to terminate this Agreement pursuant to Section 3.10.2 or to seek an
injunction against any such interference.
3.11.2 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
unreasonable interference with Lessee's operations.
3.12 Maintenance. Lessee shall, at Lessee's sole cost and expense, keep the Leased
Area in good and proper condition in compliance with all applicable laws and regulations
concerning the use of the Leased Area. All improvements shall be maintained in good and
workable order and good appearance, in accordance with City's written direction which may be
provided 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 or incident to Lessee's use of the
Leased Area or implementation of this Agreement.
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,
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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 Conservation and Recovery Act, 42 United States Code
Section 1801 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, Health and Safety Code Section 25100 et seq.; the Hazardous Substance
Account Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water
and Toxic Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California Health
and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the
California Hazardous Waste Management Act, Health and Safety Code Section 25170.1 et seq.;
California Health and Safety Code Section 25501 et seq. (Hazardous Materials Release Response
Plans and Inventory); or the California Porter- Cologne Water Quality Control Act, Water Code
Section 13000 et seq., all as amended (the above cited California state statutes are hereinafter
collectively referred to as "the State Toxic Substances Law "); or any other 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 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 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
federal, state, or local law, rule, regulation, order, decree or other requirement listed in
subsection 3.13.1.
3.13.4 In no case shall Lessee cause or allow the deposit or disposal of any such
Hazardous Substances on, under, about or within the City's Property or Leased Area.
3.13.5 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. 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.
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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 failure to disclose in
a timely manner the release of 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.) may subject Lessee to a default under this Agreement in addition to actual
damages and other remedies provided by law. Lessee shall immediately clean up and completely
remove all Hazardous Substances placed by Lessee on, under, about or within the City's
Property, in a manner that is in all respects safe and in accordance with all applicable laws, rules,
regulations.
3.13.7 In the event Hazardous Substances are discovered, Lessee shall disclose to
City the specific information regarding Lessee's discovery of any Hazardous Substances placed
on, under, about or within the City's Property by Lessee, and provide written documentation of
its safe and legal disposal.
3.13.8 Breach of any of these covenants, terns, 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 all Hazardous Substances placed by Lessee on, under, about
or within the City's Property. 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 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.
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, attorney's fees and expenses) arising as a
result of the presence or use of any 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 for claims caused by the negligence or misconduct of
City, its officials, employees or contractors. 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.
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
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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.
3.15 Previous Licenses. In the event there is an existing license between Lessee and
City (or its predecessor -in- interest) covering the City's Property, it is agreed and understood that
this Agreement shall cancel, supersede and terminate said prior license as of the effective date of
this Agreement.
3.16 Assignment or Subletting. Lessee shall not assign this Agreement or sublet all
or any portion of the City's Property, except that this Agreement shall inure to the benefit of and
be binding upon the heirs, executors, administrators, successors of each party. Lessee may
assign this Agreement to any parent, subsidiary or affiliate of Lessee and shall give City at least
thirty (30) days written notice of any such 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 or cure
any default as provided for in this Agreement; and (c) agrees to recognize Lender as if Lender
were 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.
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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 fumish 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.
3.21.1.2 Automobile Liability: Insurance Services Office Business Auto
Coverage form number CA 0001, code 1 (any auto).
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 project/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 and Employers
Liability limits of $1,000,000 per accident. Lessee's General Liability Insurance, including
occupational disease coverage, for Lessee and all persons and /or subcontractors employed or to
be employed in the performance of this Agreement, which 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. Deductibles and self - insured retentions shall be declared to
and shall be subject to approval by City, which approval shall not be unreasonably withheld.
3.21.4 Endorsements. The insurance policies shall contain the following
provisions, or Lessee shall provide endorsements on forms supplied or approved by the City to
add the following provisions to the insurance policies:
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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
Tenant, 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 arising out of negligence or willful misconduct on the part of the Tenant.
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 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.
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;
and (2) any failure to comply with reporting or other provisions of the policies, including
breaches of warranties, 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 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.
3.21.6 Verification of Coverage. Lessee shall furnish City with Certificates of
Insurance evidencing all insurance policies required hereunder and all required original
additional insured endorsements effecting coverage required by this Agreement. The
endorsements for each insurance policy are to be signed by a person authorized by that insurer to
bind coverage on its behalf. All Certificates of Insurance and endorsements are to be received
and approved by City before this Agreement is fully executed. City reserves the right to require
from time to time complete, Certificates of Insurance at that time.
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3.21.7 Acceptability of Insurers. All insurance shall be provided by insurers
having a current A.M. Best's rating of A -:VIII or better and reasonably acceptable to City.
3.22 Assumption of Risk. Lessee assumes all risk of loss to itself, which in any
manner may arise out of the 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 consequential damages and reasonable expenses of legal
representation, whether by special counsel or by City's staff, to persons or property, including
wrongful death, in any manner arising out of or incident to any acts, omissions or willful
misconduct of Lessee, Lessee's partners, affiliates, agents officials, officers or employees in
performance of this Agreement or use of the Leased Area or the City's Property by Lessee,
except to the extent arising out of the negligence or willful misconduct of City or City's officers,
officials, employees, consultants, attorneys, contractors and agents. 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.
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 acknowledges that Lessee is not entitled to
relocation assistance or any other benefits under the Uniform Relocation Assistance Act or any
other applicable 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:
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LESSEE:
CITY:
0 0
T- Mobile USA, Inc.
12920 SE 38th Street
Bellevue, WA 98006
Attn: PCS Lease Administrator
With a copy to: Attn: Legal Dept. (re: Site #: IE04866C)
With a cony to:
Omnipoint Communications, Inc.,
a subsidiary of T- Mobile USA, Inc.
3 Imperial Promenade, Suite 1100
Santa Ana, CA 92707
Attn: Lease Administration Manager (re: Site #: IE04866C)
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 or forty -eight (48) hours
after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its
applicable address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
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.
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. This Agreement shall be governed by the laws of the State of
California.
3.32 Exhibits. All Exhibits attached hereto form material parts of this Agreement.
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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 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 Premises.
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.
CITY OF ARCADIA OMNIPOINT COMMUNICATIONS,
INC.
By: .=y 6* By:
Bill Kelly
City Manager
Approved as to form: ,
By:
Stephen P. Deitsch
City Attorney
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EXHIBIT "A"
DEPICTION OF LEASED AREA
AND FACILITIES
Seethe drawings attached hereto dated 11/21/06; Sheets T -1, LS1, LS2, A -1, A -2, and A -3,
identified with Site Name: Arcadia Recreation Center and Site Number IE05407E.
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11
EXHIBIT B
Memorandum
of
Lease
15
• •
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Orampoint Communications, Inc., a
Delaware corporation, a subsidiary of T-
Mobile USA, Inc.
3 Imperial Promenade, Suite 1100
Santa Ana, CA 92707
(Site #: IE05407E)
Attn: Lease Administration Manager
MEMORANDUM OF LEASE
This Memorandum of Lease with option ( "Memorandum ") dated as of ffileft 13
2001, is entered into between the City of Arcadia ( "Landlord ") and Omnipoint Communications, Inc., a
Delaware corporation, a subsidiary of T- Mobile USA, Inc., a Delaware Corporation ( "Tenant") 'regarding
a portion of the property.
See attached Exhibit "A" incorporated herein for all purposes.
The Lease is for a term of five (5) years and will commence on or before October' 1, 2007.
Tenant shall have the right to extend the Lease for five (5) additional, five -year terms.
This Memorandum is solely for the purpose of giving constructive 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]
16
0 0
IN WITNESS WHEREOF, the parties hereto have respectively executed this memorandum
effective as of the date of the last party to sign.
LANDLORR,D::� Kitty of Arcadia
By: V
Name: Bill Kelly
Its: City Manager
Date: ' •.f (p/
TENANT: Omnipoint Communications, Inc., A Delaware Corporation, A Subsidiary Of T- Mobile
USA, Inc., a Delaware Corporation
M
Name:
Its:
Date: Z —q'0
17
0 0
EXHIBIT A
Legal Description of the Premises
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:
APN: 5775- 024 -917
Those portions of Lots 3 and 5, Tract No. 2409, in the
City of Arcadia, County of Los Angeles, State of
California, as shown on map filed -in Book 23, page 23
of maps in the office of the Registrar- R000rder of said
Ccurty, and " =Tt— Portion of that.. contain 40 foot
Southern Pacific R. R. right of way (Monrovia Br.) in
said City, as shown on said map, which lie westerly,
northwesterly and southwesterly of the following
described lines:
Commencing at the intersections of a lines parallel with and 20,jeet southerly, measured at right angles, from
that certain cou-rse_of West 3330.38 feet in the
southerly boundary of said Lot 5, with a line parallel
with and 20 feet southerly, measured at right angles
from that certain course of South 77 57' East 412.74
feet in said southerly boundary; thence North 77 57130"
West along said last mentioned parallel line 323.07
feet to the true point of beginning; thence North 10
1314011 East 168.94 feet; thence North 46 05154" East to
the southwesterly boundary of that certain 50 foot
strip of land described in deed to Los Angeles County
Flood Control District, recorded as Document No. 4782,
on November 18, 1955, in Book 49573, page 419, of
Official Records, in the office of said Registrar -
Recorder; thence northwesterly along said southwesterly
boundary 850.00 feet.
18
State of California )
ss.
County of )
M
before me,
0
personally appeared
personally known to
me (or 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.
WITNESS my hand and official seal.
Signature:
State of California )
ss.
County of )
On
before me,
personally appeared
personally known to
me (or 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.
WITNESS my hand and official seal.
Signature:
19
moil
City of Arcadia - Public Works Services Department
Post Office Box 60021
11800 Goldring Rd
Arcadia, CA 91006 -5879
Crown Castle
2000 Corporate Drive
Canonsburg, PA 15317
888 - 255 -0408
cc.letter9crowncastle . com
RE: Crown Castle Site # 824712 T- Mobile Site # IE05407E
Dear Sir /Madam:
L� !J Z
i ( - Y Q
January 25, 2013
You granted a lease (including any similar interest) to T- Mobile USA, Inc. or an affiliate ( "T- Mobile "), for
property located at 375 Campus Drive, Arcadia, CA 91066 ( "Site "). T- Mobile has entered into an agreement with
an affiliate of Crown Castle International Corp. for such affiliate ( "Crown Castle ") to control and operate the Site.
As part of such transaction, (i) Crown Castle has (a) subleased the Site, (b) been assigned the lease for the Site or (c)
exclusive rights to manage and operate the Site and (ii) T- Mobile has (a) leased back part of the Site or (b) retained
certain rights to continue using the Site.
The purpose of this letter is to have you confirm as to the lease of the Site that (i) the lease for the Site is
valid, (ii) all rents or other payments are current, (iii) there is no event of breach or default, and (iv) any consent or
notice for the transaction described above has been obtained or waived.
Please sign below and return this letter to us in the enclosed self addressed pre -paid envelope. Thank you
for your cooperation and prompt attention to this matter. If you have any questions, please call 888 - 255 -0408 or
send an email to cc.letter @crowncastle.com.
Sincerely,
Mark Schrott
Vice President — Property Management
My signature below confirms that the matters described in the second paragraph above are true and I have authority
to confirm such matters.
By:
v
Print Name: Dominic Lazzaretto, City Manager
Date: February 13, 2013
The use of the word "or" in this letter is not exclusive.
4065