Loading...
HomeMy WebLinkAboutSPRINT PCS ASSETS, LLCINSURAwuL uN FIB. WORK MAY `PROCEED A-20 0 2 —0 9 5A LINT LL-R{S{1RANCE EX,'- i 7/29/02LS z La . CLERK OF. COUNCIL 1, 1 DATE: /(_7,1-02- LAND LEASE AGREEMENT BETWEEN THE MY OF SANTA ANA AND SPRINT PCS ASSETS, LLC ORIGINAL(HEMAGE PARI L] This Agreement, made this day of 2002, between the City of Santa Ana, a charter city and municipal corporation organized and existing �fnder the Constitution and laws of the State of California hereinafter designated "LESSOR" and Sprint PCS Assets, L.L.C., a Delaware limited liability company, hereinafter designated "LESSEE". The LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties". 1. PREMISES. LESSOR hereby leases to LESSEE a portion of that certain parcel of property (the entirety of LESSOR's property is referred to hereinafter as "the Property' and a legal description of the Property is attached hereto as Exhibit "A"), located at 4815 West Camille Street, and being described as an approximately 19' by 23.25' parcel containing approximately 442 square feet and space for the installation of a monopine and space required for cable runs to connect LESSEE's equipment and antennas, and being further described as Assessor's Parcel Numbers 108-120-34 and 108-120-33, together with the non-exclusive right for ingress and egress, seven (7) days a week, twenty-four (24) hours a day, subject to any restrictions stated herein, on foot or motor vehicle, including trucks, from the nearest public right of way to the demised premises and the non- exclusive right for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along two three (T) foot wide right-af--ways, to the demised premises, said demised premises and right-of-ways (hereinafter collectively referred to as the "Premises") for access and utilities being substantially as described herein in Exhibit "B" attached hereto and made a part hereof. hi the event any public utility is unable to use the aforementioned right-of-way, the LESSOR hereby agrees to grant an alternative right-of-way either to the LESSEE or to the public utility, subject to LESSOR'S approval of location and size of said alternative right-of-way, at no cost to the LESSEE. 2. SURVEY. LESSOR also hereby grants to LESSEE the right to survey the Property and the Premises, and said survey along with detailed site plans shall then become Exhibit "B" which shall be attached hereto and made a part hereof; and shall control in the event of boundary and access discrepancies between it and Exhibit "A". Costs incurred for such work shall be bome by the LESSEE. 3. TERM. This Agreement shall be effective as of the date of execution by both parties, provided, however, the initial term shall be for ten (10) years and shall commence on the Commencement Date (defined below). 4. RENT. After the Commencement Date, rental payments will be due in an annual rental amount Of Fourteen Thousand Four Hundred Dollars ($14,400.00) to be paid in equal monthly installments of One Thousand Two Hundred Dollars ($1,200.00) on the first day of the month, in advance, to LESSOR or to such other person, firm or place as the LESSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. Rent shall be abated until 30 days after the issuance of a building permit or until four (4) months after the date of execution of this Agreement, whichever occurs first ("Commencement Date"). N rent is not paid within fifteen (15) days after the due date, LESSEE agrees to pay a late charge equal to 6% of the then -current monthly rent. 5. ANNUAL RENTAL INCREASES. The rent payments shall be subject to an annual rental increase of 3%per year, to be increased on each anniversary of the Commencement Date. 6. DEPOSIT. In recognition that the Commencement Date may not occur concurrent with the execution of this Agreement by all parties, the LESSEE hereby agrees to pay to the LESSOR upon execution of this Agreement, a one-time, non -recurring, non-refundable payment equal to one month's rent. 7/29/02LS 7. EXTENSIONS. LESSEE is granted options to extend this Agreement for up to three (3) additional five-year (5) terms unless the LESSEE terminates at the end of the then -current term by giving the LESSOR written notice of the intent to terminate at least four (4) months prior to the end of the then -current term. After expiration of the original term, LESSOR reserves the right to deny any such extension, no less than six (6) months before the extended term ends, if the LESSOR determines, in its reasonable discretion that LESSEE's continued tenancy would not be in conformity with the LESSOR's intended use of its Property at such time. 8. GOVERNMENTAL APPROVALS. It is understood and agreed that LESSEE's ability to use the Premises is contingent upon its obtaining, after the execution date of this Agreement, all of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or local authorities as well as satisfactory soil boring tests which will permit LESSEE's use of the Premises as set forth above. LESSOR shall cooperate with LESSEE in its effort to obtain such approvals and shall take no action which would adversely affect the status of the Property with respect to the proposed use by LESSEE. Prior to the Commencement Date, in the event that any of such applications for such Governmental Approvals should be finally rejected or any Governmental Approval issued to LESSEE is canceled, expires, lapses, or is otherwise withdrawn or terminated by the governmental authority or soil boring tests are found to be unsatisfactory so that LESSEE will be unable to use the Premises for its intended purposes or the LESSEE determines that the Premises is no longer technically compatible for its intended use, LESSEE shall have the right to terminate this Agreement. Notice of the LESSEE's exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and shall be effective upon the mailing of such notice by the LESSEE. All rentals paid to said termination date shall be retained by the LESSOR Upon such termination, this Agreement shall become null and void and all the Parties shall have no further obligations including the payment of money, to each other. 9. APPROVAL OF PLANS. Prior to commencing construction of LESSEE's Facilities, LESSEE shall obtain LESSOR's approval of LESSEE's work plans, which approval shall not be unreasonably withheld, conditioned, or delayed; such approval shall be issued by the Executive Director of the Parks, Recreation and Community Services Agency or his/her designee. LESSOR shall give such approval or provide LESSEE with its requests for changes, which changes must comply with all applicable building codes, in writing within fifteen (15) working days of LESSOR's receipt of LESSEE's work plans. If LESSEE does not receive such approval or request for changes in writing within such fifteen (15) working day period, LESSOR shall be deemed to have disapproved the plans. LESSOR shall not be entitled to receive any additional consideration in exchange for giving its approval of LESSEE's plans. 10. USE. LESSEE shall use the Premises for the purpose of constructing, maintaining and operating a communications facility and uses incidental and all necessary appurtenances (Facility). All improvements shall be at LESSEE's sole expense and the installation of all improvements shall be at the discretion and option of the LESSEE, with LESSOR approval, which approval shall not be unreasonably withheld, delayed or conditioned. Said approval shall be obtained from LESSOR prior to commencement of any constmcion, alterations, modifications or improvements, LESSEE agrees to submit architectural and engineering drawings ("Plans") of the equipment to be installed. LESSEE agrees that the installation and maintenance of the Facility shall be effected with all reasonable diligence and precaution to avoid damage to the land, property or personnel. Notwithstanding the foregoing, once the initial improvements are installed, LESSEE may replace, substitute, upgrade and expand its equipment, cables and antennas which comprise its Facility for the purpose of repairing or upgrading the communications capabilities of its Facility, with notice to LESSOR, , so long as the equipment, cables or antennas remain within the original physical parameters of the Premises. LESSEE shall not make any physical and/oraesthetic changes to the Premises without the prior approval of LESSOR Any such changes are subject to the provisions of Section 13 contained hereinbelow. The Facility shall be constructed and maintained in a manner and with materials that are consistent with the approved plans for the project The materials actually used must match up with the proposed materials and artistic renderings. Except in cases of emergency, LESSEE agrees to provide twenty-four hours notice to LESSOR 7/29/02LS before any installation, maintenance, replacement or repair is to take place on the Premises. In the event that maintenance is required, such as the replacement of missing branches"or the repainting of the Facility, such maintenance must be completed by LESSEE within thirty (30) days. tflil�ITUu �I�ZN:I�I C�S�A A. Lessee's Indemnity. LESSEE shall indermufy, defend and hold LESSOR its officers, employees, successors and assigns harmless from and against any and all loss, cast, claim, liability ("Claims") occurring on the Promises and arising out of or connected with the negligence or willful misconduct of LESSEE, its officers, agents, employees, or contractors except for Claims arising out of (1) the negligence or willful misconduct of LESSOR, its officers, agents, employees, or contractors; (ii) violation of law by LESSOR , its officers, agents , employees, or contractors; (III) the breach of oily duty or obligation by LESSOR under this Lease; or (iv) any condition relating to the Promises which LESSEE has no obligation to repair or maintain. B. Lessor's Indemnity. LESSOR shall indemnify, defend and hold LESSEE, its officers, employees, successors and assigns harmless from and against mny and all loss, cost, claim, liability ("Claims") occurring on the Premises and arising out of or connected with the negligence or willful misconduct of LESSOR, its officers, agents, employees, or contractors except for Claims arising out of (i) the negligence or willful misconduct of LESSEE, its officers, agents, employees, or contractors; (it) violation of law by LESSEE, its officers, agents, employees, or contractors; (III) the breach of any duty or obligation by LESSEE under this Lease; or (fv) any condition relating to the Promises which LESSOR has no obligation to repair or maintain. 12. INSURANCE. A. In accordance with the provisions of Section 3300 of the Labor Code, if LESSEE has any employees it is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing performance of this Agreement, LESSEE agrees to obtain and maintain employer's liability insurance with limits not less than $1,000,000 per accident. If LESSEE has no employees, nor workers' compensation coverage, it must execute a Declaration available from the City, and update as is necessary. B. LESSEE shall obtain, at its sole cost, a policy or policies of commercial general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence, Such insurance shall: (1) name the City of Santa Ana, its officers, agents, representatives, employees and volunteers as additional insureds (see sample Exhibit C); (2) be primary with respect to insurance or self-insurance programs maintained by the City; (3) contain standard separation of insureds provisions, and (4) give to City prompt and timely notice of claim made or suit instituted arising out of Lessee's operations hereunder, LESSEE shall: (a) prior to exercising any right under this Agreement, furoish properly executed certificates of insurance and additional insured endorsement to the City which shall clearly evidence all coverages required above; (b) provide that such insurance shall not be materially changed or terminated except on 30 days prior written notice to the City; (c) maintain such insurance for the period covered by this Agreement; and (d) replace such certificates for policies expiring prior to the expiration of this Agreement, 13. INTERFERENCE. LESSEE's facilities shall not disturb the communications configurations, equipment, and frequency which exist on the Property on the date this Lease is fully executed (".Pre -Existing Communications") and LESSEE's Facilities shall comply with ' all non-interference rules of the Federal Communications Commission ("FCC"). LESSOR shall not use, or permit the use of, any portion of the Property in any way which interferes with LESSEE's use of the Premises or encroaches upon the Promises, In addition to any other rights LESSEE may have hereunder, LESSEE shall have the right to bring legal action to enjoin such interference against the party causing any alleged interference. Notwithstanding the foregoing, Pre -Existing Communications operating in the same manner as on the date this Lease is fully executed shalll not be deemed 7/29/02IS interference. LESSOR shall require any future tenants, assignees, licensees, or occupants using any portion of the Property for the operation of mobile/wiroless or radio communications facilities to comply with the provisions of this Section. 14. REMOVAL UP N TERMINATION. LESSEE, upon termination of the Agreement, shall, within ninety (90) days, remove all of LESSEE's fixtures and all personal property and otherwise restore the Promises substantially to its original condition, at LESSEE's sole expense, reasonable wear and tear, and casualty excepted. Underground conduits and foundations may remain at LESSOR's option. LESSOR agrees and acknowledges that all of the oqulpment, fixtures and personal property of the LESSER shall remain the personal property of the LESSEE and the LESSEE shall have tine right to remove the same, whether or not said items are considered fixtures and attachments to real property under applicable law. if such time for removal causes LESSEE to remain on the Premises attertermination of this Agreement, LESSEE shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time as the removal of the building, antenna structure, fixtures and all personal property are completed. Antenna support structure and all utilities cabling and wiring shall remain at LESSOR's option. 15. RECORDING AND QUITCLAIM DEED, If requested by LESSEE, LESSOR agrees promptly to execute and deliver to LESSEE a recordable Memorandum of this Land Lem Agreement in the form of Exhibit IT". LESSEE agrees to execute and record a quitclaim deed or other instrument evidencing the termination of LESSEE's interest in the Property upon the expiration or termination of this Lease. 16. RIGHTS UPON SALE. Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any part of tine Property to a purchaser other than LESSEE, such sale shall be under and subject to this Agreement and LESSEE's rights hereunder, and any sale by the LESSOR of the portion of this Property underlying the right-of-way herein granted shall be under and subject to, the right of the LESSEE in and to such right -of --way. 17. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and performing the covenants shall peaceably and quietly have, hold and enjoy the Premises, provided however, that LESSOR shall have the right and privilege to conduct City business on the Property, as necessary. "City business" shall include, but not be limited to the following; minor maintenance, minor hmdscapin�, minor construction, concessionaires, and City sponsored eveuts, located near the Promises, so long as ViE'Crty business does not interfere with or impair the operation of LESSOR's Facility. 18, TITLE. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to outer into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of tit{o on the Property or affecting LESSOR's title to the same and that there are no covenants, easements or restrictions which prevent the use of tha Premises by the LESSEE as set forth above. 19. NO LIENS. LESSEE will not permit any mechanics' or matedalmen's lieu on the Property for any labor or material furnished to LESSEE in conmotion with work performed. LESSEE shall have the right to contest the validity, nature, or amount of any such lien but, upon the final determination of such questions, shall immediately pay any adverse judgment rendered with all proper costs and charges and have the lien released at its own expense, If LESSEE desires to contest any such lien, then prior to commencing such contest, it will post a bond, where necessary, to release the lieu. 20. MISCELLANEOUS LESSEE RESPONSMILITIES. A. Electromagnetic Fields —LESSEE shall comply with all present and future laws, orders and regulations relating to Electromagnetic Fields ("EWs") and other related health issues directly applicable to its operation of the Facility, as well as the American National Standards Institute (ANSI) standards. Without limning tine provisions of LESSEE's indemnity contained herein, LESSEE, on behalf of itself and its successors 7/29/02LB and assigns, shall indemriify LESSOR firm and against all claims of personal injuries due to EMF's to the extent such personal injuries are actually caused by LESSEE's Facilities on the Premises, B. LESSEE shall maintain LESSEE's Facilities and shall make all repairs to the Premises necessitated by reason of the default or neglect of LESSEE, its employees, agents, contractors and subcontractgrs. C. LESSEE shall pay all personal property taxes assessed directly against its equipment and all increases in LESSOR's real property taxes or assessments directly attributable to installation of LESSEE's equipment or LESSEE's use of the Premises, within sixty (60) days after receipt of satisfactory documentation indicating calculation of LESSEE's share of such real estate taxes and proof of payment. D. LESSOR grants LESSEE the right to obtain utilities for the operation of its Facility, LESSEE shall be responsible directly to the serving entities for any and all utilities required by LESSEE for its use of the Promises. LESSOR shall cooperate with LESSEE in its efforts to obtain utilities from any location provided by LESSOR or the servicing utility, including signing any easement or other instrument reasonably required by the utility company. :s E. LESSEE shall have the right to replace or repair its equipment or any portion thoreof during the term of this Agreement. LESSEE will maintain the Premises in a good condition, reasonable wear and tear excepted, 21. EMERGFNCY USE OF SITE. LESSEE shad make available to the police, fire and emergency services of the City of Santa Ana space on its communications tower at no oostto LESSEE or said entities. The space to be made available will not create interference with LESSEE's communications operations, As to any futmo sublessees, their respective installations will be permitted only at such locations that will not cause interference with LESSEE or LESSOR and the City's operations. The City entities will be afforded 24 hour access to Its equipment at the Property To addition, the City will be provided "power backup" by LESSIM, if available at the Promises. 22. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and LESSEE mid that no verbal or oral agreements, promises or understandings shall be binding upon either the LESSOR or LESSEE in any dispute, controversy or proceeding at law, and arty addition, variation or modification to this Agreement shall be void and Ineffective unless made in writing and signed by the Parties. In the event any provision of the Agreement is found to be Invalid or unenforceable, such finding shall not effect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terns or conditions of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights at any time and take such action as may be lawful and authorized wider this Agreement, either in law or Ih equity. 23, GOVERNING LAW. This Agreement and tile" jiarformtmce thereof shall be governed, interpreted, construed, and regulated by the laws of the State of C"rnik with venue in Orange County. 24. ATTORNEYS' PEES. The snbstantialiy prevailing party in any legal action or lawsuit arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including appeals, if any. 25. ASSIGNMENT, LESSEE will not assign or transfer this Agreement or sublet any portion of the Premises without the prior written consent of LESSOR, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, that LESSEE shall have the right to sublease or assign its rights under this Agreement to any of its subsidiaries, affiliates, or successor legal entities, or to any entity acquiring substantially all of the assets of LESSEE, evidence of such acquisition to be provided to LESSORby LESSEE, 26. NOTICES. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courler, provided tire courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day M9102LS following the courier's receipt tram the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): LESSOR: City of Santa Ana Executive Director Parks, Roe. & Community Services (M-23) 888 W, Santa Ana Blvd, Santa Ana, CA 92702 Courtesy City of Santa Ana— Office of the City Attorney Copy to: 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 LESSEE: Sprint PCS Assets, LLC 15500 W. 113th Street Lenexa, KS 66219 Mailstop: KSLNXCO2oi Attn: Director, National Property & Lease Management OG-38-XC-299(13) Copy to: Sprint Law Department 6391 Sprint Parkway Mailstop: KSOPFM101-Z2020 Overland Park, Kansas 66251-2020 Attn: Sprint PCS Real Estate Attorney Notice shall be effective upon mailing or delivering the same to a commercial courier, as permitted above, 27, S_IICCESSORS. This Agreement shall extend to mod bind the heirs, personal representatives, successors, administrators and assigns of the Parties hereto. 28. RELOCATION RIGHT. A. Anytime after the expiration of the original term, LESSOR shall have the one-time right, upon redevelopment of LESSOR's property, to relocate LESSEE's Communications Facility to . alternate space within LESSOR's property, if available; provided however, that such relocation shall (1) be at LESSOR's cost and expense, (2) be performed by LESSEE or its agents, (3) not rewit in any interruption of the commmmications service provided by LESSEE on LESSOWs property, (4) not impair, or in any manner alter, the quality of communications service provided by LESSEE on and from LESSOR's property, and (5) be done in accordance with subsections B. and C, below. Upon relocation of LESSEE's Facility, the access and utility rights of way will be relocated as required, in the sole discretion ofLES9EE,,td operate and maintain its Facility. B. L13SSOR shall exercise its relocation right under Paragraph A above by (and only by) delivering written notice (the "Notice') to LESSEE. In the Notice, LESSOR shall propose an alternate site within or on LESSOR's property to wldch LESSEE may relocate its Communications Facility. LESSEE shall have sixty (60) days from the date it receives the Notice 7129i02La to evaluate LESSOR's proposed relocation sits, during which period LESSEE shall have the right to conduct tests to determine the technological feasibility of the proposed relocation site, If LESSEE fails to approve of such proposed relocation site in writing within the sixty-day period, LESSEE shall be deemed to have disapproved such proposed relocation site, If LESSEE disapproves such relocation site, then LESSOR may th6reater propose another relocation site by Notice to Tenant in the manner set forth above. Any relocation site which LESSOR and LESSEE agree upon in writing shall be referred to as the "Relocation Site", LESSEE shall have a period of not less than twelve (12) months alter execution of a written agreement between the parties concerning the location and dimensions of the Relocation Site to relocate its Communications Facility to the Relocation Site, Upon relocation of LESSER's Communications Facility, to the Relocation Site, all references to the Premises herein shall be deemed to be references to the Relocation Site, LESSOR and LESSEE agree that the Relocation Site (including the access and utility right of way) may be surveyed by a licensed surveyor at the sole cost of LESSEE, and such survey will then replace Exhibit "B" and become a part hereof and will control or describe the Premises. Except as expressly provided, LESSOR and LESSEE hereby agree that in no event will the relocation of the LESSEE's Facility, or any part thereof, under Paragraph A above, affect, alter, modify or otherwise change any of the terms and conditions of this Agreement. C. Should the parties fail to agree on a suitable Relocation Site, LESSOR may pay LESSEE the depreciated value for its Communications Facility and equipment should the Promises be needed for a governmental purpose. . 29. DEFAULT, In the event there is a default by either party with respect to any of the provisions of this Agreement or its obligations under it, Including the payment of rent, the non -defaulting party shall give the defaulting party written notice of such default. After receipt of such written notice, the defaulting party shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to cure any non -monetary default, provided the defaulting party shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and the defaulting party commences tho cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. The non -defaulting party may not maintain any action or effect any remedies for default against the defaulting party unless and unfit the defaulting party has failed to care the same within the time periods provided in this Paragraph, If either party commences an action against the other party arising out of or in connection with- this Lease, the prevailing party shall be entitled to'have and recover from the losing party reasonable attorney's fees and costs of suit. 30.. ENVIRONMENTAL. a, LESSER shall not bring any hazardous materials onto the Premises/Property, except for those contained in its back-up power batteries and common materials used in telecommunications operations. "Hazardous Materials" shall mean any substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation, including petroleum and asbestos. LESSEE will treat and dispose of any hazardous materials bmught onto the Premiscs/Property by it in accordance with all federal, state and local laws and regulations. b. LESSOR will be responsible for all obligations of compliance with any and all onAromneatal and Industrial hygiene laws, including any regulations, goldolinc,% standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or concerns as may now or at any Ume hereafter be in effect, that are or were In any way related to activity now conducted in, on, or in any way related to the Property, unless such conditions or concerns are caused by the activities of the LESSEE. 7/29102M c. LESSOR shall hold LESSEE harmless and indemnify the LESSEE from and assume all duties, responsibility and liability at LESSOR's sole cost and expense, for all duties, responsibilities, and liability (including but not limited to payment of penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is In any way related to: (i) failure to comply with any enviromnenial or industrial hygiene law, including without limitation any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene concerns or conditions as may now or at any time hereafter be in effect, unless such compliance results from conditions caused by the LESSEE; and (if) any environmental or industrial hygiene conditions arising out of or in any way related to the condition of the Property or activities conducted thereon, unless such environmental conditions are caused by the LESSEE. 31. CASUALTY. In the event of damage by fire or other casualty to the Premises that cannot reasonably be expected to be repaired within sixty (60) days following same or, if the Property is damaged by fire or other casualty so that such damage may reasonably be expected to disrupt LESSEE's operations at the Premises for more than sixty (60) days, then LESSEE may at any time following such Are or other casualty, provided LESSOR has not commenced the restoration required to permit LESSEE to resume its operation at the Premises, terminate this Lease upon twenty (20) days written notice to LESSOR. Any such notice of termination shall cause this Lease to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Lease and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Lease. 32. CONDEMNATION. In the event of any condemnation of the Promises, LESSEE may terminate this Lease upon fifteen (15) days written notice to LESSOR, LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the antennas, equipment, its relocation costs and its damages and losses (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Lease to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Lease and the parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Lease. 33. SUBMISSION OF LEASE.. The submission of this Lease for examination does not constitute an offer to lease the Premises and this Lease becomes offeotivo only upon the fidl execution of this Lease by the Parties. If any provision herein is invalid, it shall be considered deleted from this Lease and shall not invalidate the remaining provisions of this Lease. 34. APPLICABLE LAWS. LESSEE shall use the Premises for the use described above in Section 10. in accordance with applicable laws, rules and regulations. LESSOR agrees to keep the Property in conformance with all applicable, laws, rules and regulations and agrees to reasonably cooperate with the LESSEE regarding any compliance required by the LESSEE in respect to its use of the Promises. 35. URVi AL, The provisions of the Agreement relating to indemnification, from one Party to the other Party sball survive any termination or expiration of this Agreement. Additionally, any provisions of this Agreement which require performance subsequent to the termination or expiration of this Agreement shall also survive such termination or expiration. 36. CAPTIONS. The captions contained in this Agreement arc inserted for convenience only and are not intended to be part of the Agreement. They shall not atfect or be utilized in the construction or interpretation of the Agreement. 37. PROPERTY SPECIF—ICACCESS RULEMEGULATIONS, LESSEE agrees to abide by all conditions of approval mud rules and regulations of the Property and Premises imposed by LESSOR as set firth in Exhibit D, attached hereto, as the same may be changed from time to time upon reasonable notice to LESSEE. These rules and regulations are specific to the Facilities site and are imposed to insure the proper maintenance, v2sro2Ls good order and reasonable use of the Premises and Property and as may be necessary for the enjoyment of the Premises and Property by both parties hereto. 38. POWERING DQ)kU DURING MAINl'BN PAIR (Not applicable to free- standiag/independent Communications Facilities). LESSEE agrees that during all maintenance on the Communications Facility by the LESSOR or other lessees or users of the Facility, while following the procedures and guidelines set forth by the Occupational Safety and Health Adrninisiratton (OSHA) and the FCC implementing the National Environmental Policy Act of 1969, when continuing transmission is deemed unsafe for maintenance personnel (based upon standards promulgated by a governmental authority having jurisdiction over LESSEE) due to radiation, the effected transmitters of LESSEE will be turned off until the unsafe condition no longer exists. The earliest practicable notice will be given to LESSEE using the information in Exhibit B (as applicable). 39. TERMINATION A. Compelled Termination: If, during the Lease term, there is a determination made pursuant to an unappealable order of a county, state, or national governmental health agency having proper jurisdiction that LESSEE's use of the Premises poses a human health hazard which cannot be remedied, then LESSEE shall immediately cease all operations on the Premises and this Lease shall terminate as of the date of such order. In the event the Federal Communications Commission, or any successor agency, makes a determination which is final and non -appealable or which is affirmed and becomes final after the exhaustion of all available appeals concluding that the LESSEE's use' as set forth in this Agreement presents a material risk to the public health or safety, LESSOR may terminate this Agreement upon fourteen days notice to LESSEE, B. Termination by LESSEE: LESSEE may terminate this Agreement by notice to LESSOR if (i) LESSEE does not obtain all permits, consents, casements, non-disturbanoo agreements or other approvals (collectively "approval") reasonably desired by LESSEE or required from any governmental authority or any third party related to or reasonably necessary to operate the Facility, or if any such approval is canceled, expires or is withdrawn or terminated without any f8'tllt of LESSEE, or (if) U LESSOR fails to have proper ownership of the Premises or the authority to enter into this Agreement, or (III) after the first 10 years, only with twelve (12) months' written notice to LESSOR, Upon termination, all prepaid rent shall be retained by LESSOR, unless termination is pursuant to (ii) above or is the molt of LESSOR's default. C. Termination by LESSOR: LESSOR may terminate this Agreement if LESSEE fails to perfonn any of its obligations pursuant to this Agreement (including all attached Exhibits/Attachments) after giving written notice to LESSEE and reasonable time to care, 40. MISCELLANEOUS PROVISIONS, a. Each undersigned represents and warrants that its signature hereinbelowhas thepower, authority and rightto bind their respective parties to each of the terms of this Agreement, and cechpariy shall indemnify the otherfully, including reasonable costa and attorney's fees, for any injuries or damages incurred in the eventthat such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibitsr*roncedhereinandattachedhereto"beincorporatedasiffrdlysetforthinthe body of this Agreement c. LESSOR shall not have unsupervised access to LESSEE's egtdpment and Facility, except in cases of exigent chwalstances or emergency situations. 7/29/02LS IN WITNESS WHEREOF, the parties hereto have executed this Lease the date and year first above written. ATTEST: CIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By: e, , G .0*-a .t-- LISA E. STORCK Assistant City Attorney RECOMMENDED FOR APPROVAL: JON "RIP" RIBBLE, Exec, ctor Parks, Recreation & Community Services Agency CITY OF SANTA ANA za� — GZ" - DAVIDN. REAM City Manager LESSEE Sprint PCS Asspts, LLc By'�y Gamble Ti e: egional Director of Site Development Employer ID # or Individual SS# EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY [Legal Description attached consisting of Two (2) Pages] LESSOR INTIALS: LESSEE INTIALS: 7/29/02LS t�.. All except as to that portion of Parml B owned by Orange CountyFlood Control District: PAR.C13L A: That portion of the Northwest quarter of Section 16, Township 5 South, Range 10 West, In the.Rancho ias Bolsas, City of Santa Ana, as shown on a map thereof recorded in book' 51, page 12, Miscellaneous Maps, records of said Orange County, described as follows: Beginning 10 chains Fast and 9 chains North of the Southwest corner of the Northwest quarter of Section 16, Township 5 South, Range 10 West, San Bernardino Base and Meridian, in the Rancho Us Bolsas, City of Santa Ana, County of Orange, State of California; thence North 9 chains; thence East 10 chains; thence South 9 chains; thence West 10 chains to the point of beginning; EXCEPT that portion thereof lying Northwesterly of a line parallel and concentric with and 35.00 feet Southeasterly of the following described line: Beginning at a point on the center line of Verano Street distant thereon North 0° '12' 55" Fast 426.61 feet from the centerline intersection of said Vermin Street and Sugar Avenue (said intersection being also the Southwest .comer of said Northwest quarter of Section 16); thence North 89 ° 04" 40" East 46.06 feet to the beginuing of a tangent curve concave Northwesterly and having a radius of 1200.00 feet; thence Northeasterly 1187.28 feet along said curve through a central angle of 56' 41' 18" to a point through which a radial bears South 57a 36' 38" Fast; thence Northeasterly 1163.23 feet along a compound curve concave Northwesterly and' having a radius of 2072.36 feet through a central angle of 32" 09' 38"; thence tangent to said curve North 0" 13' 44" East 413,58 feet to a,point on the center line of Bolsa Avenue, (said tangent line being parallel with and 35.00 feet Easterly measured at right angles from the West line of, the Northeast quarter of said Northwest . quarter of Section 16); said point being distant South 890 34' 42" East 1356.29 feet along the center line of said Bolsa Avenue from the center line intersection of Verano Street and Bolsa Avenue, being also die Northwest corner of said section. That portion of the East half of the South half of the East half of the Northwest quarter of the Northwest quarter of Section 16, Township 5 South, Range 10 West, in the Rancho Las Bolsas, City of Santa Ana, County of Orange, State of California, that lies Southeasterly of a line distant 35.00 feet Southeasterly parallel and concentric with the following described litre: Beginning at a point on the centerline of Verano Street, distant thereon North 0° 12' 55" East, 426.61 feet from the centerline intersection of said Verano Street and Sugar Avenue (said centerline intersection being also the Southwest corner of said Northwest quarter of Section 16); thence North 89' 04' 46" East, 46.06•feet to the beginning of a tangent curve, concave Northwesterly and having a radius of 1200.00 feet; thence Northeasterly 1187.28 feet along said curve through a central angle of 56" 41' 18" to a point through which a radial bears South 57" 36' 38" East; thence Northeasterly 1163.23 feet along a compound curve, concave Northwesterly Laving a radius of 2072.36 feet, through a central angle of 320 09' 38" to a line tangent, said tangent line being p=Ael with and 35.00 feet Easterly (measured at right angles) from the West line of the Northeast quarter of said Northwest quarter of Section 16; thence along said tangent line North 0" 13' 44" Last, 413.58 feet to a point on the centerline of Bolsa Avenue distant South 89" 341. 42" Bast, 1356.29 feet from the centerline intersection of Verano Street and Bolsa Avenue (said centerline Intersection being also the Northwest corner of said section). PARCEL C: That portion of the Northwest quarter of Section 16, Township 5 South, Range 10 West, San Bernardino Base and Meridian described as follows; , Beginning at the Northeast corner of Tract No. 2905, as shown on a map thereof, recorded in book 128, pages 45 and 46, Miscellaneous Maps, in the office of the County Recorder of said County, and running thence North 00" 41' 00" West along the Northerly prolongation of the East line of said Tract No. 2905 a distance of 594.63 feet; thence North 89" 30' 35" East 141.31 feet; thence South 000 41' 00" Bast 660,92 feet; thence South 89° 30' 35 West 141.31 feet to a point in the East line of said Tract No, 2905; thence North 00" 41, 00" West 66.29 feet to the point of beginning. EXCEPTING therefrom that portion of the Northwest quarter of Section 16, Township 5 South, Range 10 West, San Bernardino Base and Meridian, lying within the following described property: Beginning at a point which is North 89" 30' 35" Nast 141.53 feet from a point on the East line of Tract No. 2905 as shown on a map thereof recorded in book 128 at pages 45 and 46, Miscellaneous Maps, records of Orange County, California, which is South 00" 41' 00" East 66.29 feet from the Northeast comer of said Tract No. 2905 and running thence South 890 30' .35" West 141.53 feet to said East line of Tract No. 2905; thence North 00" 41' 00" West along said East lino 46.29 feet to a point on a non -tangent curve concave Southwesterly having a radius of 67.00 feet, the radial to said curve at said point bears North 000 29' 25" West; thence Southeasterly along the arc of said curve through a central angle of 36° 11' 01 " an arc distance of 42.31 feet to a point of reverse curvature with a curve concave Northeasterly having a radius of 173.00 feet; thence Southeasterly along the .are of said curve through a central angle of 36" 15' 23" an are distance of 109.47 feet to the point of beginning. EXCEPTING therefrom that portion lying East of the East line of the West 103.00 feet thereof. EXHIBIT B LEGAL DESCRIPTION OF THE PREMISES SITE PLANSI DESCRIPTIVE RENDERINGS [Site Plans Attached consisting of Fifteen (15) Pages] LESSOR UMALS: LESSEE INTIMA: 7/29/02LS EXHIBIT C ADDITIONAL INSURED LESSOR RMALS: LESSEE RMALS: 7/29/02LS W29/02r.9 EXHIBIT D Conditions Of Approval: [Heritage Park] The following items will be conditions of approval that will be included in the lease agreement between the City of Santa Ana and Sprint (Permit Applicant"): The permit applicant recognizes that the frequencies used by the cellular facility located at 4815 West Camile Street are extremely close to the frequencies used by the City of Santa Ana for Public Safety. This proximity will require extraordinary "comprehensive advanced planning and fequency coordination" engineering measures to prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public -Safety Communications Officials -International, Incorporated (APCO), and as endorsed by the Federal Communications Commission (FCC). Prior to the issuance of any permits to install the facility, (Permit Applicant) shall meet in good faith to coordinate the use of frequencies and equipment with the Communications Division of the Orange County Sheriff. Coroner Department to minimize, to the greatest extent possible, any interference with the Public Safety 800 MIIz Countywide Coordinated Communications System (CCCS), Similar consideration shall be given to any other existing or proposed wireless communications facility that may be located on the subject property. 2. At all times, the permit applicant shall not prevent City of Santa Ana from having adequate spectrum capacity on City's 800 MHz radio frequency, 3. Before activating its facility, the permit applicant will submit to a post -installation test to confirm that "advanced planning and frequency coordination" of the facility was successful in not interfering with the City of Santa Ana Public Safety radio equipment. This test will be conducted by the Communications Division of the Orange County Sheriff Coroner Department or a Division -approved contractor at the expense of the Applicant. This post -installation testing process shall be repeated for every proposed frequency addition and/or change to- confirm the intent of the "frequency planning" process has been met. 4. The permit applicant shall provide a 24-hour phone number to which interference problems may be reported. This condition will also apply to all existing facilities in. the City of Santa Ana. The permit applicant will provide a "single point of contact" in its Engineering and Maintenance Departments to insure continuity on all interference issues. The 7n9/02LS name, telephone number, fax number and e-mail address of that person shall be provided to City's designated representative upon activation of the facility. 6. The permit applicant shall insure that lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the failure of any lessee or other users under the control of permit applicant to comply. 7. The permit applicant shall provide a coverage and cell site location map for each existing and proposed facility in Santa Ana. 8. The proposed wireless communication structure must be engineered to allow the collocation of other service providers. 9. Locate all equipment and related appurtenances (appleton plug and electric meter) on the inside of the equipment enclosure. 10, Three 84 inch box Canary Island Pine trees (60 inch trees are proposed) are required for this project based on previous approval from the Parks Recreation and Community Services Agency. 11. Provide Boston Ivy Vines to the telecommunications building (replacing Ficus Pumila) to deter potential graffiti problems. PROPERTY SPECIFIC ACCESS RULES/REGULATIONS A. LESSOR shall have the unilateral right and privilege to undertake all normal items and operations associated with the current use of the Property, including, but not limited to public events and City business, which may include high powered electric lights and food services, arrange for the televising of any public event to be held at the Property, and ability to contract with other interested parties. B. City business may also include minor landscaping, minor maintenance and minor construction proximately located near the Premises, so long as the City business does not interfere with or impair the operation of the LESSEE's Communications Facility. C. LESSEE's access to the Premises shall be limited when the Premises is being used for a public event, and the four (4) hours before and after any such event. LESSEE will obey any procedures set by LESSOR regarding notification before visiting the Premises, checking in on -site, parking, gates, etc LESSOR H ALS: LESSEE INTIALS: 3/28102 LES EXHIBIT E CONTACT INFORMATION: LESSOR'S TECHNICAL CONTACTS: Name:1. Lease Management Hotline (800)824-0101 Monday — Friday, 8:30 AM — 4:30 PM 2. Sprint PCS Network Operations Control Center (888) 859-1400 24 hours a day / 7 days a week LESSEE'S TECHNICAL CONTACTS: Name: 1. Ron Ono 2. Address: 888 W Santa Ana Blvd, Santa Ana Daytime Phone No.: (714) 571-4219 Facsimile No.: (714) 571-4235 24 Hour Contact No.: Dispatch Center: LESSOR RMALS: LESSEE INTIALS: 3/28102 IES EXHIBIT F MEMORANDUM OF LAND LEASE AGREEMENT THIS MEMORANDUM OF LAND LEASE AGREEMENT is made and entered into as of , 2002 by and between ***, a *** ("Lessor") and SPRINT SPECTRUM L.P., a Delaware limited partnership ("Lessee"). WITNESSETH: That Lessor hereby leases to Lessee and Lessee hereby leases from Lessor a portion of that certain real property (the "Property") in the State of California, County of ***, City of * * * commonly known as ***, a legal description of which is shown in Exhibit A attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded Land Lease Agreement by and between Lessor and Lessee dated by Lessor 1 2002 and incorporated herein by reference (the "Agreement') for an initial term of ten (10) years, and three (3) subsequent optional extension terms of five (5) years each, pursuant to the terms of the Agreement. The Agreement provides for grant of non-exclusive right or way for rights of access to the Property and to electrical and telephone facilities serving the Property. IN WITNESS WHEREOF, the parties have executed the Memorandum as of the day and year first above written. Lessee: Sprint PCS Assets, LLC By: Title: Regional Director of Site Development Address: 4683 Chabot Drive, Suite 100 Pleasanton, California 94588 [FORM DOCUMENT, PLEASE EWTiAL ONLY - NOT FOR EXECUTION] LESSORINTIALS: LESSEEINTIALS: