Item 1.5 - Approval of Lease Agmt. with Verizon Wireless for Telecomm Facility 17301 Butterfield TrailCity of Poway
OUNCIL AGENDA REPORT
APPROVED 0
APPROVED AS AMENDED O
(SEE MINUTES)
DENIED O
REMOVED O
CONTINUED
RESOLUTION NO.
DATE: June 3, 2014
TO: Honorable Mayor and Members of the City Council
FROM: Daniel Singer, City Managers,
INITIATED BY: Scott Edwards, Director of AdmirYistrative Se ices
Linda Shields, Sr. Management Analyst, --
SUBJECT: Approval of Lease Agreement between the City and Verizon
Wireless (VAW), LLC, a Delaware Limited Liability Company,
for the Installation and Operation of a Telecommunications
Facility at 17301 Butterfield Trail, Poway, CA 92064 (Boca
Raton Reservoir)
Summary:
Conditional Use Permit (CUP) 12 -014 was approved May 7, 2013, which allows Verizon
Wireless to install a telecommunications facility at Boca Raton Reservoir. Staff has
negotiated the terms and conditions of the facility lease, which has been reviewed and
approved by the City Attorney and legal counsel for Verizon Wireless.
Recommended Action:
It is recommended that the City Council approve the attached lease agreement with
Verizon Wireless and authorize the City Manager to execute the lease agreement on
behalf of the City.
Background:
On May 7, 2013, the City Council approved CUP 12 -014, which allows Verizon Wireless
to install a telecommunications facility at Boca Raton Reservoir. Since that time, City
staff has been working with PlanCom, Inc., representatives of Verizon Wireless, to
negotiate a lease agreement for the actual installation of the telecommunications facility.
Findings:
Staff has negotiated the terms of the lease with Verizon Wireless for an initial period of
five years, with three five -year options to renew. With the execution of the lease, a one-
time aggregate payment of $5,000 is due from Verizon Wireless. Lease payments are
to be paid annually on the anniversary of the commencement date, which will be July 1
of each subsequent year. The first year lease payment of $36,650 is due within forty -
five (45), days after the commencement date.
1 of 26 June 3, 2014 Item #1.5
Approval of Lease Agreement with Verizon Wireless
June 3, 2014
Page 2
This lease amount is consistent with the initial rate charged to another
telecommunications vendor located at the same site. The lease amount is also
considered a market rate, and was derived by averaging all lease rates for the City's
sixteen existing cell site locations. Additionally, the lease rate was determined to be
consistent with the updated (2013) Annual Base License Fee Matrix of Rates from the
Cal Trans Telecommunications (Wireless) Licensing Program. The City Attorney and
Verizon's legal counsel have reviewed and approved the proposed lease agreement.
Staff recommends approval of the lease.
Fiscal Impact:
The annual CPI increase for this lease agreement is calculated at no less than three
percent (3 %) per year nor greater than eight percent (8 %) per year. With the one -time
aggregate payment, this lease agreement will generate no less than $199,580 in
revenue for the initial five -year term of the agreement.
Environmental Review:
This item is not subject to CEQA review.
Public Notification:
Additional notification was sent to Verizon Wireless, and PlanCom, Inc., representing
Verizon Wireless.
DS:SE:Is
Attachment: Lease Agreement (Attachment A)
2 of 26 June 3, 2014 Item #1.5
LEASE AGREEMENT
This Lease Agreement ( "Lease ") is entered into this 3rd day of June, 2014, by
and between the City of Poway, a municipal corporation ( "Landlord ") and Verizon
Wireless (VAW), LLC, a Delaware Limited Liability Company, having a mailing address
of 180 Washington Valley Road, Bedminster, NJ 07921 ( "Tenant ").
Background
A. Landlord is the owner in fee simple of a parcel of land located in the City of
Poway, San Diego County, State of California, legally described on the attached Exhibit
A (the "Owned Premises "), on which two reservoirs (individually, "Reservoir" and
collectively, "Reservoirs" or "Reservoir Site," as the context may require) are located.
The street address of the Owned Premises is 17301 Butterfield Trail, Poway, CA 92064.
B. Tenant desires to lease space on the Owned Premises for the installation and
operation of certain antenna facilities and other related equipment and improvements
( "Antenna Facilities ") for use in connection with Tenant's communications business.
C. Pursuant to Resolution No. P- 13 -10, Conditional Use Permit No. 12 -014, for the
Antenna Facilities (the "CUP ") was approved by the Poway City Council on May 7,
2013.
D. The parties, solely in an arrangement involving the lease of a portion of the
Owned Premises from Landlord to Tenant, and not as a part of any land use decisions,
including the CUP, desire to enter into this Lease on the terms and conditions set forth
below.
Agreement
In consideration of their mutual covenants, the parties agree as follows:
1. Leased Premises.
Landlord leases to Tenant and Tenant leases from Landlord on a non - exclusive
basis a portion of the Owned Premises, including space on one of the Reservoirs, as
shown on the Site Plan attached as Exhibit B (the "Leased Premises" or "Premises" as
the context may require). Tenant intends to locate the Antenna Facilities on the Leased
Premises as described more fully on the attached Exhibit C. Tenant may not add
additional equipment and /or antennas from that shown on Exhibit C without the prior
written approval of Landlord, which may include the requirement to amend the CUP.
Specifically, the Premises shall consist of the following: (i) space on the
Reservoir identified on Exhibit B for Tenant's antennas ( "Antenna Space "), (ii) ground
space measuring approximately thirty -five (35) feet by twelve (12) feet and containing
approximately four hundred twenty (420) square feet for the installation of Tenant's
equipment ( "Equipment Space "), and (iii) the right to install and maintain utility wires,
poles, cables, conduits, and pipes (collectively, the "Appurtenant Facilities ") over, under,
3 of 26 Attachment A June 3, 2014 Item #1.5
or along a right of way extending between the Equipment Space and Antenna Space,
and to the nearest appropriate utilities providers (collectively, "Utilities "); provided
however, that the Appurtenant Facilities do not interfere with Landlord's use or the
reasonable use of any tenant of any part of the Owned Premises existing as of the date
Tenant commences construction of the Antenna Facilities.
Landlord reserves the right to require Tenant to permanently relocate
( "Relocation ") its facilities to another location on the Reservoir and /or Owned Premises.
Any such Relocation shall be limited to one time only during the term of this Lease,
including any extension options. Within fifteen (15) days after Tenant's receipt of
Landlord's Relocation notice ( "Relocation Notice "), the parties shall meet to identify and
negotiate, in good faith, to agree upon a new location at the Owned Premises for the
Leased Premises. The parties shall have a period of sixty (60) days after Tenant's
receipt of the Relocation Notice within which to reach an agreement on the new
location. Within thirty (30) days after such new location has been agreed upon Tenant
shall commence obtaining all Governmental Approvals (as defined in Section 13 below)
required for the Relocation. If no agreement is reached, Landlord shall in good faith
designate the new location for the Leased Premises; provided however, that Tenant
shall have the right to terminate this Lease if such location designated by Landlord- is
unacceptable to Tenant. Within thirty (30) days after such new location has been
designated by Landlord, Tenant shall either give Landlord notice of its intent to
terminate this Lease or commence obtaining all Governmental Approvals required for
the Relocation. Tenant shall diligently pursue obtaining all such Governmental
Approvals and Landlord, at no cost to Landlord, shall reasonably cooperate with Tenant
in obtaining the same. Tenant shall complete the Relocation of its facilities within sixty
(60) days after Tenant's receipt of written notice from Landlord ( "Relocation Period ").
Landlord agrees to reasonably extend the Relocation Period so long as Tenant begins
the Relocation as required hereunder and diligently prosecutes the Relocation to
completion. Notwithstanding the foregoing, the Relocation Period shall be tolled for the
period of time beginning when Landlord, in its jurisdictional capacity, accepts all of
Tenant's required applications for permits as complete and concluding on the date that
the Landlord, in its jurisdictional capacity, completes processing the permits Landlord
requires for the Relocation (the "Tolling Period "). In calculating the Tolling Period no
time shall be allowed for any periods of time that Tenant is required to modify, correct,
and return the applications, due to Landlord's reasonable finding any of the re- submitted
applications are incomplete or contain errors requiring correction. If Landlord requires
use of the Premises before the Relocation is completed, Landlord shall allow Tenant to
install temporary facilities sufficient to maintain Tenant's operations, which temporary
facilities shall be located in a mutually agreeable location at the Owned Premises.
Tenant must remove such temporary facilities from the Premises after Tenant's
Relocation is complete. In no event will temporary facilities remain on the Premises for
more than sixty (60) days without the written permission of Landlord; provided however,
that Landlord shall not unreasonably withhold such permission if Tenant is diligently
working to complete such Relocation as soon as practicable. The Relocation shall be at
Tenant's expense unless Landlord's Relocation requirement results from Landlord's
desire to lease space on the Reservoir or Leased Premises to non - governmental third -
party users. In that case, Landlord will promptly reimburse Tenant for the reasonable
4 of 26 June 3, 2014 Item #1.5
Relocation costs of Tenant. Notwithstanding anything to the contrary contained in this
Section 1, the Relocation shall not result in a lessening of Tenant's ability to use the
Leased Premises for its intended purpose, or the quality of such use.
Upon request of Landlord, . Tenant agrees to relocate its equipment on a
temporary basis ( "Temporary Relocation "), at Tenant's cost, to another location on the
Reservoir or Owned Premises, hereinafter referred to as the "Temporary Premises," for
the purpose of Landlord performing maintenance, repair or similar work at the Owned
Premises, provided:
a. The Temporary Premises is similar to Tenant's existing location in size
and is compatible for Tenant's use, in Tenant's reasonable determination;
b. Landlord gives Tenant at least ninety (90) days' written notice prior to
requiring Tenant to temporarily relocate;
C. Tenant's use at the Leased Premises is not interrupted or diminished
during the Temporary Relocation and Tenant is allowed, if necessary, in Tenant's
reasonable determination, to place a temporary installation on the Owned Premises
during any such Temporary Relocation; and
d. Upon the completion of any maintenance, repair or similar work by
Landlord, Tenant is permitted to return to its original location from the Temporary
Premises, which Tenant shall complete as soon as reasonably practicable.
This Lease is not a franchise pursuant to Chapter 5.60 of the Poway Municipal
Code nor is it a permit to use the rights -of -way under Chapter 12.04 of the Poway
Municipal Code. Any such franchise or permit must be obtained separately from
Landlord. This Lease shall not be interpreted as imposing, elevating validation,
invalidating or in any way modifying any franchise license or permit requirement
imposed, restricted, pre - empted or otherwise affected by local, state or federal law.
2. Term. The term of this Lease shall be five (5) years, commencing on the first day
of the month following both (i) City Council approval of the CUP and (ii) execution of this
Lease by the parties hereto (the "Commencement Date "). So long as Tenant is in
compliance with the terms and conditions contained herein and the terms and
conditions of the CUP, Tenant shall have three (3) five -year options to extend this
Lease on the same terms and conditions, excluding rent which shall be adjusted
annually as set forth in Section 3.a. below. Each option shall be deemed automatically
exercised unless Tenant provides written notice of intent not to exercise the option at
least ninety (90) days prior to the expiration of the then current five -year term.
Notwithstanding such extension options, Tenant understands and acknowledges
that conditions of approval of the CUP are subject to review and modification at any
time by the City Council, after public hearing.
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3. Rent.
a. Tenant shall pay Landlord as annual initial rent for the Premises the sum
of Thirty Six Thousand Six Hundred Fifty and NO /100 Dollars ($36,650.00) ( "Rent ").
Tenant shall pay Landlord annual initial Rent within forty -five (45) days after the
Commencement Date. Tenant shall thereafter pay Landlord adjusted Rent on the
annual anniversary of the Commencement Date. The annual Rent shall be adjusted
and the adjustment shall be calculated by multiplying the amount of Rent for the prior
year by a fraction, the numerator of which is the Revised Consumer Price Index for All
Urban Consumers, published by the U.S. Department of Labor, Bureau of Labor
Statistics for the Los Angeles- Riverside - Orange County Area, All Items (1982 -84 = 1.00),
the ( "CPI "), and the denominator of which is the CPI for the third (3`d) calendar month
preceding the effective Commencement Date month. Each such annual adjustment
shall apply to the Rent to be paid for that year until the next adjustment occurs. In no
event shall the cost of living increase be less than three percent (3 %) per year nor
greater than eight percent (8 %) per year. If the index is discontinued or revised during
the term, such other government index or computation with which it is replaced shall be
used in order to obtain substantially the same result as would be obtained if the index
had not been discontinued or revised, as determined by the Director of Administrative
Services of the Landlord.
b. Tenant shall pay Landlord a late payment charge equal to five percent
(5 %) of the Rent for any Rent not paid within thirty (30) days after receipt of notice from
Landlord to Tenant. Any amounts not paid within the previously mentioned thirty (30)
day period shall bear interest until paid at the lesser of the rate of two percent (2 %) per
month or the highest rate permitted by law.
C. For each additional antenna installed by Tenant beyond the initial array
described in Exhibit C and approved by Landlord pursuant to Section 8 below, Tenant
shall execute an amendment to this Lease and shall pay Landlord an additional Rent of
Two Hundred and NO /100 Dollars ($200.00) per month. This additional Rent is
effective the first day of the month following Landlord's execution of the amendment,
and is to continue for the remainder of the current lease year. Effective the beginning of
the, subsequent lease year, there shall be added to the annual Rent the CPI adjustment
set forth in subdivision (a), above, and the additional annual Rent (Two Thousand Four
Hundred and NO /100 Dollars ($2,400) per additional antenna), with such new amount to
become part of the annual Rent.
d. If this Lease is terminated at a time other than on the last day of the term,
Rent shall be prorated as of the date of termination and, in the event of termination for
any reason other than nonpayment of Rent, the balance of all prepaid Rent shall be
refunded to Tenant within thirty (30) days of the date of termination.
4. Taxes. This Lease may result in a taxable possessory interest as defined in
California Revenue and Taxation Code section 107, and the Tenant may be responsible
for the payment of property taxes for the use of the Premises. Tenant agrees to and
shall pay before delinquency all taxes and assessments of any kind assessed or levied
6 of 26 June 3, 2014 Item #1.5
upon Tenant or the Premises by reason, of this Lease or of any buildings, machines, or
other improvements of any nature whatsoever erected, installed or maintained by
Tenant or by reason of the business or other activities of Tenant upon or in connection
with the Premises; except that Tenant shall not be required to pay any sales tax, rental
tax or income tax assessed upon Landlord. Such taxes and assessments shall be in
addition to Rent.
5. Use of Premises. Tenant shall use the Premises for the installation, operation,
repair and maintenance of the Antenna Facilities for the transmission and reception of
communications signals and for the operation of a communications system and uses
incidental thereto and for no other uses. Tenant may not add additional equipment
and /or antennas from that shown on Exhibit C without the prior written approval. of
Landlord, which may require the amendment of the CUP, pursuant to Section 8 below.
Landlord reserves the right to enter into agreements with other parties, including, but
not limited to, wireless communication carriers (hereinafter "Carrier ") for use of the
Owned Premises as provided herein. The Carrier will provide Landlord and Landlord
will deliver to Tenant documentation certified by an engineer licensed in the State of
California and specializing in the design of wireless communications facilities, that the
Carrier's proposed antennas and other facilities will not interfere with Tenant's then -
existing antennas, and the Reservoir and /or Reservoir Site can structurally support the
additional antennas. If Carrier's plans and specifications are approved by Landlord,
Landlord shall notify Tenant in writing as to the scheduled date and time of
commencement of construction and installation of Carrier's transmitting /receiving
equipment not less than ten (10) business days prior to such date. Any change to the
Carrier's approved antenna type and location and /or change in transmitter types and
power output shall be made compatible with Tenant's use of the Reservoir at Carrier's
sole expense.
In the event Tenant experiences interference from a Carrier in Tenant's use of
the Premises and the Antenna Facilities, Landlord will make its best effort to assist
Tenant in resolving such interference.
Tenant shall, at its expense, comply with all applicable present and future
federal; state, and local laws, ordinances, rules and regulations (including laws and
ordinances relating to health, radio frequency emissions, other radiation and safety) in
connection with the use, operation, maintenance, construction and /or installation of the
Antenna Facilities and /or the Owned Premises. Landlord agrees to reasonably
cooperate with Tenant in obtaining, at Tenant's expense (including reimbursement of
Landlord's reasonable attorney and administrative fees), any federal, state and local
licenses and permits required for or required by Tenant's use of the Leased Premises.
Tenant shall exercise due diligence in utilizing the Owned Premises so as to not
interfere with utilization of the Owned Premises by Landlord, and Tenant agrees to
comply with the terms and provisions of this Lease and the CUP. It is understood by
Tenant that Landlord's principal use of the Owned Premises is as a water storage
reservoir and, as a part of the water transmission system of Landlord and that it is
7 of 26 June 3, 2014 Item #1.5
necessary to maintain adequate security at all times for the primary utilization of the
Owned Premises by Landlord.
Tenant has been advised and understands that Landlord has a radio controlled
telemetry system for the Reservoir and Tenant agrees not to create any interference of
any kind with Landlord's signals and further agrees to promptly, upon receipt of written
notice and supporting evidence from Landlord, to correct any interference that may
result from Tenant's equipment or to promptly cease the operation of Tenant's
equipment causing such interference (except for intermittent testing) until
non - interference with Landlord's telemetry equipment has been obtained.
Tenant's installation, operation, and maintenance of the Antenna Facilities shall
not damage or interfere in any way with Landlord's operations or related repair and
maintenance activities. Tenant agrees to cease all such actions which materially
interfere with Landlord's use of the Reservoir or Owned Premises promptly upon
Tenant's receipt of actual written notice of such interference, provided, however, in such
case, Tenant shall have the right to terminate this Lease pursuant to the provisions of
Section 6 herein. Landlord, at all times during this Lease, reserves the right to take any
action it deems necessary, in its sole discretion and for any reason, to repair, maintain,
alter or improve the Owned Premises of which the Reservoir is a part, in connection
with its operations as may be necessary including leasing parts of the Reservoir or
Owned Premises to others as provided herein.
6. Termination. This Lease may be terminated, without liability to either party, (a)
by Tenant upon ninety (90) days' written notice if it is unable to obtain or maintain any
license, permit, or other Governmental Approval (as defined below) necessary for the
construction and /or operation of the Antenna Facilities or Tenant's business; or (b) by
Landlord if Landlord decides, in its sole discretion and for any reason, to discontinue
use of the Reservoir and /or Owned Premises and provides Tenant with a one hundred
eighty (180) day notice of termination; or (c) by Landlord upon thirty (30) days' written
notice if it determines, in its sole discretion and for any reason, that the Reservoir and /or
Owned Premises is not safe for Tenant's use; or (d) immediately by Landlord if it
determines in its reasonable and qualified discretion that continued use of the Reservoir
or Owned Premises by Tenant is in fact a threat to health, safety or welfare or violates
applicable laws or ordinances and ten (10) days after receiving written notice from
Landlord, Tenant fails to resolve the issue; or (e) by Tenant upon sixty (60) days' prior
written notice if Tenant determines that interference by or to Tenant's use of Premises
cannot be resolved to Tenant's reasonable satisfaction; or (f) by Landlord upon ninety
(90) days' prior written notice if Landlord determines that interference by or to
Landlord's use of the Owned Premises cannot be resolved to Landlord's reasonable
satisfaction; or (g) by Tenant upon ninety (90) days' written notice if, due to
technological changes, Tenant determines that it is no longer practical to use the
Premises for Tenant's intended purposes, provided Tenant has removed Antenna
Facilities from the Premises by that time.
If the Reservoir, Owned Premises or Leased Premises, or any portion thereof, is
altered, destroyed or damaged so as to materially hinder effective use of the Antenna
8 of 26 June 3, 2014 Item #1.5
Facilities through no fault or negligence of Tenant, Tenant may elect to terminate this
Lease upon thirty (30) days' written notice to Landlord. Landlord shall have no
obligation to undertake any repair to the Reservoir or Owned Premises.
If this Lease is terminated by Landlord due to a material breach by Tenant of one
of Tenant's obligations herein, the termination shall be effective thirty (30) calendar days
from the date of delivery of written notice of termination.
Upon termination of this Lease for any reason, Tenant shall remove its
equipment, personal property, Antenna Facilities, and leasehold improvements from the
Premises within thirty (30) days after the date of termination, and shall restore the
Leased Premises to the same condition as existed prior to this Lease, ordinary. wear
and tear and loss due to casualty and other causes beyond Tenant's control excepted;
all at Tenant's sole cost and expense. Any such property, equipment or Antenna
Facilities not removed within thirty (30) days of Lease termination, may be removed by
Landlord and stored on behalf of Tenant at Tenant's sole expense and Tenant may be
charged for the reasonable, actual and documented cost of removal incurred by
Landlord.
Notice of termination of this Lease for any reason shall be given pursuant to
Section 25 below.
7. Construction Standards. The Antenna Facilities shall be installed on the
Premises in a good and workmanlike manner, without the attachment of any
construction liens, and in compliance with the terms and conditions of the CUP and this
Lease.
8. Installation of Equipment.
a. Tenant shall have the right, at its sole cost and expense, to install, operate
and maintain on the Premises, in accordance with good engineering practices and with
all applicable Federal Communications Commission ( "FCC ") and the California Public
Utilities Commission ( "CPUC ") rules and regulations, the Antenna Facilities as
described in Exhibit C. Tenant may not add additional equipment and /or antennas from
that shown on Exhibit C without the prior written approval of Landlord, which may
require an amendment of the CUP.
b. Tenant's installation of the Antenna Facilities shall be done according to
plans approved by Landlord and in compliance with the conditions of approval for the
CUP. Any damage done to the Reservoir or Owned Premises during installation by
Tenant and /or during Tenant's operations shall be repaired or replaced promptly at
Tenant's expense. In connection with the installation and operation of the Antenna
Facilities, Tenant shall not locate or attach any antennas or other equipment to the
Reservoir tank except that approved by the CUP. The installation methods for the
Antenna Facilities or other equipment to the Reservoir tank must be done in a manner
that will be compatible with the cathodic protection of the Reservoir tank and all other
9 of 26 June 3, 2014 Item #1.5
Landlord facilities and equipment located on the Owned Premises and in compliance
with the terms and conditions of'the CUP.
C. Within thirty (30) days after final inspection of the Antenna Facilities by
Landlord, Tenant shall provide Landlord with as -built drawings of the Antenna Facilities
and the improvements installed on the Premises, which show the actual location of all
equipment and improvements consistent with Exhibit C.
d. Any change to Tenant's approved antenna type, number of antennas,
antenna location and /or change in transmitter type and power output shall require the
prior written approval of Landlord, which may include an amendment of the CUP, and
shall, at the sole expense of Tenant, be made in accordance with applicable regulations
issued by the FCC and /or the CPUC. If Tenant's plans and specifications are approved
by Landlord, Landlord shall notify all other tenants of the Reservoir in writing as to the
scheduled date and time of commencement of construction or installation of Tenant's
modified equipment not less than ten (10) days prior to such date.
9. Equipment Upgrade. Tenant may update or replace the Antenna Facilities from
time to time with the prior written approval of Landlord, provided that the replacement
facilities are not greater in number or size than the then - existing facilities and that any
change in their location on the Reservoir or Premises is approved in writing by Landlord.
Such equipment upgrades may also require an amendment of the CUP. Tenant shall
submit to Landlord a detailed proposal for any such replacement facilities and any
supplemental materials as may be reasonably requested, for Landlord's evaluation and
determination. Notwithstanding anything to the contrary above, Tenant shall have the
right to perform routine maintenance, repairs, and replacement to the Antenna Facilities
within the Leased Premises, subject to the provisions of Section 11.b. below, and so
long as such work complies with the CUP.
10. Maintenance and Operations.
a. Tenant shall, at its own expense, maintain the Premises and any
equipment on or attached to the Premises in a safe condition, in good repair and in a
manner suitable to Landlord so as not to conflict with the use of or other leasing of the
Reservoir and Owned Premises by Landlord.
b. Tenant shall have sole responsibility for the maintenance, repair, and
security of its equipment, personal property, Antenna Facilities, and leasehold
improvements, and shall keep the same in good repair and condition during the Lease
term.
C. Tenant shall keep the Premises free of debris and anything of a
dangerous, noxious or offensive nature or which would create a hazard or undue
vibration, heat, noise or interference.
d. In the event Landlord or any other tenant undertakes painting,
construction or other alterations on theA,Reservoir or Owned Premises, Tenant shall take
reasonable measures at Tenant's cost to cover Tenant's equipment, personal property
10 of 26 June 3, 2014 Item #1.5
or Antenna Facilities and protect the same from paint and debris fallout which may
occur during the painting, construction or alteration process. Landlord and /or any
tenant that is undertaking the work on the Reservoir or Owned Premises will give each
of the other tenants at least fifteen (15) days written notice prior to commencing such
work.
11. Premises Access.
a. Tenant shall have both pedestrian and vehicular access to the Premises
by means reasonably designated by Landlord, subject to notice requirements to
Landlord as noted in the approved CUP, and also in Section 11'b., below.
b. Tenant shall have access to the Premises in order to install, operate,
maintain and remove the Antenna Facilities only with the prior approval of Landlord.
Said approval shall not be unreasonably withheld. City business days are Monday -
Thursday (7 a.m. — 5 p.m.), and open alternating Fridays (7 a.m. — 4 p.m.) Tenant shall
request from Landlord access to the Premises by telephone at least two (2) business
days in advance for work that is minor in nature (e.g., no heavy equipment required).
To receive approval and coordinate the date and time of access for minor work,
Tenant's representative or contractor must contact Landlord's cell site coordinator
( "Coordinator ") at (858) 668 -4700, provided however, that leaving a message shall not
constitute advance notice. If Tenant leaves a message with the Coordinator, the
Coordinator shall return any such messages within two (2) business days. Construction
or maintenance activities may be' scheduled Monday through Thursday between the
hours of 9 a.m. to 3 p.m., and 9 a.m. to 2 p.m. on alternating Fridays. Landlord shall
grant Tenant such access unless such access will unreasonably interfere with any of
Landlord's activities or operations at the Owned Premises. In the event of an
emergency that affects the health and safety of the public, Tenant shall notify Landlord's
cell site coordinator ( "Coordinator ") for immediate access to the Premises. Routine
repair or maintenance work is not considered an emergency. In the event an
emergency occurs on a weekend, holiday, or after - hours, Tenant shall call Landlord's
after -hours number, (858) 668 -4751, and a Landlord representative shall be available to
answer such calls twenty -four (24) hours a day, seven (7) days a week.
C. In the event Tenant requires access to the Premises outside of Landlord's
availability as noted above in Section 11 b., Tenant shall be billed for Landlord's costs to
provide such access, unless authorized by the Director of the Public Works Department.
Costs shall include any overtime or call -out compensation to which an employee
facilitating Tenant access may be entitled, the cost of the vehicle, as well as an
overhead charge. Tenant shall reimburse Landlord for these costs within thirty (30)
days of billing.
d. Upon twenty four (24) hours prior notice to Tenant, Landlord shall be
allowed and granted access to the Premises at reasonable times to examine and
inspect the Premises for safety reasons or to ensure that Tenant's covenants are being
met, as long as Tenant's equipment, technology and proprietary interests remain secure
and the operation of the Antenna Facilities is not adversely affected.
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12. Utilities. Tenant shall, at its expense, separately meter charges for the
consumption of electricity and other utilities associated with its use of the Leased
Premises and shall timely pay all costs associated therein.
13. Approvals: Compliance with Laws. This Lease, Tenant's obligations under this
Lease and Tenant's use of the Premises is contingent upon Tenant's ability to obtain
and maintain all necessary governmental licenses, permits, and approvals and pay all
fees in connection therewith that may be required by any federal, state or local authority
( "Governmental Approvals "), including Landlord. Landlord makes no representation,
commitment or obligation, as to Tenant's success in obtaining the required
Governmental Approvals. Tenant shall erect, maintain and operate the Antenna
Facilities in accordance with statutes, ordinances, rules and regulations now in effect or
that may be issued thereafter by the FCC or any other governing bodies.
14. Interference.
Before approving the placement of the Antenna Facilities, Landlord may obtain
from Tenant, at Tenant's expense an interference study indicating whether Tenant's
intended use will interfere with any existing communications facilities on the Reservoir
or Owned Premises existing as of the date of commencement of construction of the
Antenna Facilities pursuant to this Lease and an engineering study indicating whether
the Reservoir or Premises is able to structurally support Tenant's Antenna Facilities
without prejudice to Landlord's primary use of the Reservoir. After review of Tenant's
study, Landlord may, in its sole discretion, determine that a third party study is
necessary and Landlord may obtain such study at Tenant's expense.
Tenant shall be responsible for installing any equipment, at its own expense,
reasonably required by Landlord to eliminate any interference that may be caused by
the location of the radio transmitting or other equipment of all parties existing on the
Reservoir prior to the Commencement Date including, but not limited to, Landlord and
other Carriers on the Owned Premises.
Tenant's use and operation of the Antenna Facilities shall not interfere with the
use and operation of other communication facilities on the Reservoir or Owned
Premises, which pre- existed the Antenna Facilities. If the Antenna Facilities cause
interference, Tenant shall take all measures reasonably necessary to correct and
eliminate the interference. If the interference cannot be eliminated in a reasonable time,
Tenant shall immediately cease operating its facility (other than intermittent testing) until
the interference has been eliminated. If the interference cannot be eliminated within
thirty (30) days after Tenant receives written notice from Landlord of such interference,
Landlord or Tenant may terminate this Lease pursuant to Section 6 herein.
15. Lease and Landlord's Remedies. It shall be a default if Tenant fails to pay Rent
or any other sums to Landlord when due, and does not cure such default within thirty
(30) business days after receipt of written notice from Landlord; or if Tenant fails to
obtain or retain the necessary Governmental Approvals due to the fault of Tenant; or if
Tenant defaults in the performance of any other covenant or condition of this Lease and
12 of 26 June 3, 2014 Item #1.5
does not cure such other default within thirty (30) days after receipt of written notice
from Landlord specifying the default complained of; provided however, no such failure
will be deemed to exist if Tenant has commenced to cure such default within such
period and provided that such efforts are prosecuted to completion with reasonable
diligence; or if Tenant abandons or vacates the Premises; or if Tenant is adjudicated
bankrupt and the bankruptcy proceeding is not dismissed within ninety (90) days from
its commencement or makes any assignment for the benefit of creditors; or if Tenant
becomes insolvent.
In the event of a default and following the applicable cure period if the default
remains uncured, Landlord shall have the right, at its option, in addition. to and not
exclusive of, any other remedy Landlord may have by operation of law, without any
further demand or notice, to reenter the Premises and eject all persons therefrom, and
either (a) declare this Lease at an end, in which event Tenant shall immediately pay
Landlord a sum of money equal to the total of (i) the amount of the unpaid Rent accrued,
through the date of termination; (ii) the amount by which the unpaid Rent reserved for
the balance of the term exceeds the amount of such rental loss that Tenant proves
could be reasonably avoided (net of the costs of such reletting); and (iii) any other
amount necessary to compensate Landlord for all detriment proximately caused by
Tenant's failure to perform its obligations under this Lease, or (b) without terminating
this Lease, relet the Premises, or any part thereof, for the account of Tenant upon such
terms and conditions as Landlord may deem advisable, and any monies received from
such reletting shall be applied first to the expenses of such reletting and collection,
including reasonable attorneys' fees, and thereafter toward payment of all sums due or
to become due Landlord hereunder, and if a sufficient sum shall not be thus realized to
pay such sums. and other charges, Tenant shall pay Landlord any deficiency monthly,
notwithstanding that Landlord may have received rental in excess of the rental
stipulated in this Lease in previous or subsequent months, and Landlord may bring an
action therefor as such monthly deficiency shall arise.
No reentry and taking of possession of the Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease, regardless of the
extent of renovations and alterations by Landlord, unless a written notice of such
intention is given to Tenant by Landlord. Notwithstanding any reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease for such
previous breach.
16. Cure by Landlord. In the event of any default of this Lease by Tenant, Landlord
may at any time, after delivering at least thirty (30) days' prior written notice to Tenant,
cure the default for the account of and at the expense of Tenant. If Landlord incurs any
expense to cure such default, Tenant shall reimburse Landlord for such expense within
thirty (30) days after Tenant's receipt of Landlord's invoice and reasonably supporting
documentation.
17. Condemnation. In the event the Premises are taken by eminent domain by the
City of Poway or any other governmental agency, this Lease shall terminate as of the
date possession of the Premises is taken by the condemning authority. In the event a
13 of 26 June 3, 2014 Item #1.5
portion of the Premises is taken by eminent domain, either party shall have the right to
terminate this Lease as of the date of transfer of possession, by giving thirty (30) days'
written notice to the other party. In the event of any taking under the power of eminent
domain, Tenant shall not be entitled to any portion of the award paid for the taking
(except for relocation expenses) and Landlord shall otherwise receive the full amount of
such award. Except as herein provided, Tenant hereby expressly waives any right or
claim to any portion thereof, including any claim for loss of business or goodwill, all such
claims (except for relocation expenses) being hereby irrevocably assigned to the
Landlord. All damages, whether awarded as compensation for diminution in value of
the leasehold or to the fee of the Premises, shall belong to Landlord.
18. Indemnity and Insurance.
a. Disclaimer of Liability: Landlord shall not at any time be liable for injury or
damage occurring to any person or property from any cause whatsoever arising out of
Tenant's construction, maintenance, repair, use, operation, condition or dismantling of
the Premises or the Antenna Facilities, except to the extent attributable to the sole
negligent or sole intentional act of Landlord, its employees, agents or independent
contractors.
b. Indemnification: Except to the extent attributable to the sole negligent or
sole intentional act of Landlord, its employees, agents or independent contractors,
Tenant shall, at its sole cost and expense, indemnify, defend, and hold harmless
Landlord and all associated, affiliated, allied and subsidiary entities of Landlord, now
existing or hereinafter created, and their respective elected and appointed officials,
officers, boards, employees, agents, attorneys,. and contractors (hereinafter collectively
referred to as "Indemnitees "), from and against:
i. Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation, reasonable
fees and expenses of attorneys, expert witnesses and consultants), which may
be imposed upon, incurred by or be asserted against the Indemnitees by reason
of any act or omission of Tenant, its personnel, employees, agents, contractors
or subcontractors, resulting in personal injury, bodily injury, sickness, disease or
death to any person or damage to, loss of or destruction of tangible or intangible
property, libel, slander, invasion of privacy and unauthorized use of any
trademark, trade name, copyright, patent, service mark or any other right of any
person, firm or corporation, which may arise out of or be in any way connected
with the construction, installation, operation, maintenance, use or condition of the
Owned Premises, Leased Premises or Antenna Facilities or the Tenant's failure
to comply with any federal, state or local statute, ordinance or regulation.
ii. Any and all liabilities, obligations, damages, penalties, claims, lie..ns,
costs, charges, losses and expenses (including, without limitations, reasonable
fees and expenses of attorneys, expert witnesses and other consultants), which
are imposed upon, incurred by or asserted against the Indemnitees by reason of
any claim or lien arising out of work, labor, materials or supplies provided or
14 of 26 June 3, 2014 Item #1.5
supplied to Tenant, its contractors or subcontractors, for the installation,
construction, operation, maintenance or use of the Premises or Antenna
Facilities, and, upon the written request of Landlord, Tenant shall cause such
claim or lien covering Landlord's property to be discharged or bonded around
within thirty (30) days following such request.
iii. Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation, reasonable
fees and expenses of attorneys, expert witnesses and consultants), which may
be imposed upon, incurred by or be asserted against the Indemnitees by reason
of any financing or securities offering by Tenant or its affiliates which results in
any violations of the common law or any laws, statutes, or regulations of the
State of California, or United States, including those of the Federal Securities and
Exchange Commission.
iv. Tenant's obligation to indemnify the Indemnitees under this Lease
shall not extend to claims, losses, and other matters covered hereunder to the
extent that they are caused by the sole negligence or sole intentional acts of one
or more Indemnitees.
V. Tenant's obligation to indemnify Indemnitees shall survive the
termination of this Lease.
C. Assumption of Risk. Tenant undertakes and assumes for its officers,
agents, affiliates, contractors and subcontractors and. employees (collectively "Tenant"
for-the purpose of this section), all risk of dangerous conditions, if any, on or about the
Premises, and Tenant hereby agrees to indemnify and hold harmless the Landlord
against and from any claim asserted or liability imposed upon the Indemnitees for
personal injury or property damage to any person (other than from an Indemnitee's sole
negligence or sole intentional acts) arising out of the Tenant's installation, operation,
maintenance, condition or use of the Premises or Tenant's Antenna Facilities or
Tenant's failure to comply with any federal, state or local statute, ordinance or
regulation.
d. Defense of Landlord. In the event any action or proceeding shall be
brought against the Landlord by reason of any matter for which the Landlord is
indemnified hereunder, Tenant shall, upon receipt of written notice from Landlord, at
Tenant's sole cost and expense, resist and defend the same with legal counsel provided
however, that Tenant shall not admit liability in any such matter on behalf of the
Landlord without the prior written consent of Landlord and provided further that Landlord
shall not admit liability for, nor enter into any compromise or settlement of, any claim for
which it is indemnified hereunder, without the prior written consent of Tenant.
e. Notice, Cooperation and Expenses. Landlord shall give Tenant prompt
written notice of the making of any claim or the commencement of any action, suit or
other proceeding covered by the provisions of this Section. Nothing herein shall be
deemed to prevent Landlord from cooperating with Tenant and participating in the
15 of 26 June 3, 2014 Item #1.5
defense of any litigation _ by Landlord's own counsel. Tenant shall pay all reasonable
expenses incurred by Landlord in response to any such actions, suits or proceedings.
These expenses shall include all out -of- pocket expenses such as attorneys' fees and
shall also include the reasonable value of any services rendered by the Landlord's
attorney, and the actual expenses of Landlord's agents, employees or expert witnesses
and disbursements and liabilities assumed by Landlord in connection with such-suits,
actions or proceedings but shall not include attorneys' fees for services that are
unnecessarily duplicative of services provided Landlord by Tenant.
If Tenant requests Landlord to assist it in such defense then Tenant shall pay all
expenses incurred by Landlord in response thereto, including defending itself with
regard to any such actions, suits or proceedings. These expenses shall include-all out -
of- pocket expenses such as reasonable attorney fees and shall also include the
reasonable costs of any services rendered by the Landlord's attorney, and the actual
and documented expenses of Landlord's agents, employees or expert witnesses, and
disbursements and liabilities assumed by Landlord in connection with such suits,
actions or proceedings, but shall not include attorneys' fees for services that are
unnecessarily duplicative of services provided Landlord by Tenant.
f. Insurance. During the term of this Lease, Tenant shall maintain, or cause
to be maintained, in full force and effect and at its sole cost and expense, the following
types and limits of insurance:
i. Workers' compensation insurance meeting applicable statutory
requirements and employer's liability insurance with limits of One Million Dollars
($1,000,000) for each accident.
ii. Commercial general liability insurance with limits of Three Million
Dollars ($3,000,000) as the combined single limit for each occurrence and in the
aggregate of bodily injury, personal injury and property ,damage. The policy shall
provide blanket contractual liability insurance for all written contracts, and shall
include coverage for products and completed operations liability, independent
contractor's liability; coverage for property damage from perils of explosion,
collapse or damage to underground utilities, commonly known as XCU coverage.
iii. Automobile liability insurance covering all owned, hired, and non -
owned vehicles in use by Tenant, its employees and agents, to comply with the
provisions of state law with limits of Two, Million Dollars ($2,000,000) as the
combined single limit for each occurrence for bodily injury and property damage.
iv. At the start of and during the period of any construction, an
installation floater or equivalent property coverage covering cables, materials,
machinery and supplies of any nature whatsoever which are to be used in or
incidental to the construction. Upon completion of the construction, Tenant shall
substitute for the foregoing insurance policies of fire, extended coverage and
vandalism and malicious mischief insurance. The amount of insurance at all
times shall be representative of the insurable values installed or constructed.
16 of 26 June 3, 2014 Item #1.5
V. All policies other than those for Workers' Compensation shall be
written on an occurrence and not on a claims made basis.
vi. The coverage amounts set forth above may be met by a
combination of underlying and umbrella policies so long as in combination the
limits equal or exceed those stated.
vii. Tenant shall furnish certificates of insurance to Landlord before
commencement of any work on the Leased Premises or Owned Premises.
g. Additional Insureds. All required policies, except for worker's
compensation and property insurance policies, shall include Landlord and all
associated, affiliated, allied and subsidiary entities of Landlord, now existing or hereafter
created, and their respective elected and appointed officials, officers, boards,
commissions, employees, agents, as their respective interests may appear as additional
insureds (herein referred to as the "Additional Insureds "). The policy will provide
primary coverage and is not secondary or in any way subordinate to any other
insurance or coverage maintained by Landlord. Each policy that is to include Additional
Insureds hereunder shall contain cross - liability wording, to the effect of:
In the event of a claim being made hereunder by one insured for which another insured
is or may be liable, then this policy shall cover such insured against whom a claim is or
may be made in the same manner as if separate policies had been issued . to each
insured hereunder.
h. Evidence of Insurance. Certificates of insurance for each insurance policy
required to be obtained by Tenant in compliance with this Section, shall be filed and
maintained with Landlord annually during the term of this Lease. Tenant shall promptly
advise Landlord in writing of any claim or litigation that may result in liability to Landlord.
i. Cancellation of Policies of Insurance. With the exception of Tenant's
property insurance policy, Tenant shall provide at least thirty (30) days' prior written
notice to Landlord of any intention not to renew such policy or to cancel, and not
replace.
j. Deductibles. Tenant agrees to indemnify and save harmless Landlord, the
Indemnitees and Additional Insureds ,from and against the payment of any deductible
and from the payment of any premium on any insurance policy required to be furnished
by Tenant under this Lease.
Tenant may, in its sole discretion, self - insure any of the required insurance under
the same terms as required by this Lease.
In the event Tenant elects to self- insure its obligation under this Lease to include
Landlord as an additional insured, the following conditions apply:
17 of 26 June 3, 2014 Item #1.5
i. Additional insured shall be limited to bodily injury, property damage
or personal and advertising injury caused, in whole or in part, by Tenant, its
employees, agents or independent contractors.
ii. Additional insured shall not exceed Tenant's indemnification
obligation under this Lease, if any.
iii. Additional insured shall not extend to claims for punitive or
exemplary damages arising out of the acts or omissions of Landlord, its
employees, agents or independent contractors or where such coverage is
prohibited by law or to claims arising out of the sole gross negligence of
Landlord, its employees, agents or independent contractors.
iv. Landlord shall promptly and no later than thirty (30) days after
notice thereof provide Tenant with written notice of any claim, demand, lawsuit,
or the like for which it seeks coverage pursuant to this Section and provide
Tenant with copies of any demands, notices, summonses, or legal papers
received in connection with such claim, demand, lawsuit, or the like.
V. Landlord shall not settle any such claim, demand, lawsuit, or the
like without the prior written consent of Tenant.
vi. Landlord shall fully cooperate with Tenant in the defense of the
claim, demand, lawsuit, or the like, however this does not obligate or extend
financial liability to Landlord.
k. Contractors. Tenant and Landlord shall each require that each and every
one of its contractors and their subcontractors who perform work on the Owned
Premises or Leased Premises to carry, in full force and effect, workers' compensation,
commercial general liability and automobile liability insurance coverages of. the type
which the insured is required to obtain under the terms of this Section with reasonable
and appropriate limits of insurance.
19. Hazardous Substance Indemnification. Tenant represents and warrants that its
use of the Premises herein will not generate any hazardous substance, and it will not
store or dispose on the Premises nor transport to or over the Premises any hazardous
substance in violation of any applicable local, state or federal law or regulation. Tenant
shall be allowed to store on the Premises the number of batteries as shown in Exhibits
B and C of this Lease, as well as fuel for Tenant's emergency generator, an HVAC
system, and a halon /FM200 fire suppression system. The batteries shown on the
Exhibits are to be used for emergency backup power. No additional batteries or fuel
may be stored on the Premises without the prior written approval of Landlord. Tenant
further agrees to hold Landlord harmless from and indemnify Landlord against any
release by Tenant of any such hazardous substance and any damage, loss, or expense
or liability resulting from such release by Tenant including reasonable attorneys' fees,
costs and penalties incurred as a result thereof except any release caused by the sole
negligence or sole intentional acts or omissions of Landlord, its employees, agents or
18 of 26 June 3, 2014 Item #1.5
contractors. "Hazardous substance" shall be interpreted broadly to mean any
substance or material defined or designated as hazardous or toxic waste, hazardous or
toxic material, hazardous or toxic or radioactive substance or other similar term by any
federal, state or local environmental law, regulation or rule presently in effect or
promulgated in the future, as such laws, regulations or rules may be amended from time
to time; and it shall be interpreted to include, but not be limited to, any substance which
after release into the environment will or may reasonably be anticipated to cause
sickness, death or disease.
20. Radio Frequency (RF) Indemnification. Tenant shall comply with all present and
future applicable laws, orders, and regulations relating to Radio Frequency ( "RFs ") to
the extent required by current or future FCC regulations.
21. Holding Over. Any holding over after the expiration of the term hereof with'the
consent of Landlord shall be construed to be a tenancy from month to month at two
times the Rents herein specified (prorated on a monthly basis) and shall otherwise be
for the term and on the conditions herein specified, so,far as applicable.
22. Subordination to Mortgage. Any mortgage now or subsequently placed upon any
property of which the Premises are a part shall be deemed to be prior in time and senior
to the rights of Tenant under this Lease. Tenant subordinates all of its interest in the
leasehold estate created by this Lease to the lien of any such mortgage. Tenant shall,
upon receipt of Landlord's written request, execute any mutually agreeable additional
documents reasonably necessary to effectuate this subordination provided that any
such mortgagee agrees to recognize and not disturb Tenant's rights under the Lease.
23. Aggregate Payment. Tenant shall pay Landlord the sum of Five Thousand and
No /100 Dollars ($5,000.00) to reimburse Landlord for its costs in negotiating and
administering this Lease ( "Aggregate Payment "). This Aggregate Payment is a
one -time payment. The Aggregate Payment shall not be considered "Rent" and is due
forty -five (45) days after the Commencement Date.
24. Acceptance of Premises. By taking possession of the Premises, Tenant accepts
the Premises in the condition existing as of the Commencement Date. Landlord makes
no representation or warranty with respect to the condition of the Premises and, except
as provided by applicable law, Landlord shall not be liable for any latent or patent defect
in the Premises.
25. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed given as of the date of such service or mailing if
personally delivered, mailed, certified mail, return receipt requested or sent by a
nationally recognized overnight courier; to the following addresses:
If to Landlord, to: City of Poway
Attn: City Manager
P.O. Box 789
Poway, California 92074 -0789
19 of 26 June 3, 2014 Item #1.5
With a copy to: City of Poway
Administrative Services Department
Attn: Senior Management Analyst
P.O. Box 789
Poway, California 92074 -0789
If to Tenant, to: Verizon Wireless (VAW) LLC,
dba Verizon Wireless
180 Washington Valley Road
Bedminster; New Jersey
Attn: Network Real Estate
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained
pursuant to the foregoing.
26. Assignment. Tenant may assign this Lease and all or any rights, benefits,
liabilities and obligations hereunder, to: (i) any person or entity which is a parent,
subsidiary or affiliate of Tenant; (ii) any person or business entity that controls or is
controlled by or under common control with Tenant; or (iii) any person or business entity
that is merged or consolidated with Tenant or purchases a majority or controlling
interest in the ownership or assets of Tenant in the market defined by the FCC in which
the Owned Premises is located. Upon notification to Landlord by Tenant of any such
assignment, Tenant will be relieved of all future performance, liabilities and obligations
under this Lease to the extent of such assignment. Tenant may not otherwise assign or
sublet this Lease without Landlord's written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
27. Successors and Assigns. This Lease shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and
assigns.
28. Miscellaneous.
a. Authority. Landlord and Tenant represent and warrant to each other that
each, respectively, has the full right, power, and authority to execute this Lease.
b. Integration. This Lease constitutes the entire agreement and
understanding of the parties and supersedes all offers, negotiations, and other
agreements of any kind, whether oral or written. There are no representations or
understandings of any kind not set forth herein. Any modifications of or amendment to
this Lease must be in writing and executed by both parties.
C. Venue. This Lease shall be construed in accordance with the laws of the
State of California. Any action to enforce or interpret this Lease shall be brought in the
Superior Court for San Diego County, California, Central or East County Divisions.
Tenant hereby expressly waives any right to remove any such action from San Diego
County as is otherwise permitted by California Code of Civil Procedure section 394.
20 of 26 June 3, 2014 Item #1.5
d. Validity. If any term of this Lease is found to be void or invalid, such
invalidity shall not affect the remaining terms of this Lease, which shall continue in full
force and effect.
e. Covenants. Landlord represents and warrants to Tenant that: (i) it solely
owns the Owned Premises as a lot in fee simple, unencumbered by any liens,
restrictions, mortgages, covenants, conditions, easements, leases, agreements, of
record or not of record, which would adversely affect Tenant's intended use and
enjoyment of the Premises under this Lease; and (ii) as long as Tenant is not in default,
Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and
possession of the Premises.
f. Construction. The provisions contained in this Lease shall not be
construed in favor of or against either party, but shall be construed as if both parties
contributed equally to its preparation.
g. Interpretation. Unless otherwise specified, the following rules of
construction and interpretation apply: (i) captions are for convenience and reference
only and in no way define or limit the construction of the terms and conditions hereof; (ii)
use of the term "including" will be interpreted to mean "including but not limited to "; (iii)
whenever a party's consent is required under this Lease, except as otherwise stated in
the Lease or as same may be duplicative, such consent will not be unreasonably
withheld, conditioned or delayed; (iv) exhibits are an integral part of this Lease and are
incorporated by reference into this Lease; (v) use of the terms "termination" or
"expiration" are interchangeable; (vi) reference to a default will take into consideration
any applicable notice, grace and cure periods; (vii) to the extent there is any issue with
respect to any alleged, perceived or actual ambiguity in this Lease, the ambiguity shall
not be resolved on the basis of who drafted the Lease; (viii) the singular use of words
includes the plural where appropriate and (ix) if any provision of this Lease is held
invalid, illegal or unenforceable, the remaining provisions of this Lease shall remain in
full force if the overall purpose of the Lease is not rendered impossible and the original
purpose, intent or consideration is not materially impaired.
h. Limitation of Liability. Except for the indemnity. obligations set forth in this
Lease, and otherwise notwithstanding anything to the contrary in this Lease, Tenant and
Landlord each waives any claims that each may have against the other with respect to
consequential, incidental or special damages, however caused, based on any theory of
liability.
i. Compliance with Law. Tenant agrees to comply with all federal, state and
local laws, orders, rules and regulations ( "Laws ") applicable to Tenant's use of the
Antenna Facility on the Owned Premises. Landlord agrees to comply with all Laws
relating to Landlord's ownership and use of the Owned Premises and any
improvements on the Owned Premises.
j. W -9. Landlord agrees to provide Tenant with a completed IRS Form W -9
and Form 590, or their equivalents, upon execution of this Lease and at such other
21 of 26 June 3, 2014 Item #1.5
times as may be reasonably requested by Tenant, including any change in Landlord's
name or address.
k. Execution /No Option. The submission of this Lease to any party for
examination or consideration does not constitute an offer, reservation of or option for
the Leased Premises based on the terms set forth herein. This Lease will become
effective as a binding agreement only upon the handwritten legal execution,
acknowledgment and delivery hereof by Landlord and Tenant. This Lease may be
executed in two (2) or more counterparts, all of which shall be considered one and the
same agreement and shall become effective when one or more counterparts have been
signed by each of the parties. All parties need not sign the same counterpart.
I. Waiver of Jury Trial. Each party, to the extent permitted by law,
knowingly, voluntarily and intentionally waives its right to a trial by jury in any action or
proceeding under any theory of liability arising out of or in any way connected with this
Lease or the transactions it contemplates.
29. Limitation on Applicability. Notwithstanding any language in this Lease, the
terms and conditions herein shall apply only to the Reservoir and the Premises
described above. Nothing in this Lease shall be interpreted to affect the parties' right
and obligations regarding other properties, sites, facilities or proposed projects of
Tenant.
[Signatures appear on next page]
22 of 26 June 3, 2014 Item #1.5
This Lease was executed as of the date first set forth above.
LANDLORD: TENANT:
City of Poway, Verizon Wireless (VAW) LLC, a
a municipal corporation Delaware limited liability company
By: By:
Name: Daniel Singer Name: Brian Mecum
Title: City Manager Title: Area Vice President Network
Date: Date:
ATTEST:
Im
Sheila R. Cobian, CMC, City Clerk
APPROVED AS TO FORM:
Morgan L. Foley, City Attorney
23 of 26 June 3, 2014 Item #1.5
EXHIBIT A - Legal Description of Owner! Premises
All that certain real property situated in the County of San Diego, State of California,
described as follows:
Parcel A:
That portion of the Northwest Quarter of the Southwest Quarter of Section 19, Township
13 South, Range 1 West, San Bernardino Base and Meridian, in the County of San
Diego, State of California, described as follows:
Beginning at the East Quarter of said Section 24;
Thence South 330
00'
56" East, 816.25 feet to the True Point of Beginning;
Thence North 400
43'
00" East, 89.98 feet;
Thence South 820
17'00"
East, 70.00 feet;
Thence South 520
17'00"
East, 120.00 feet;
Thence South 70 43' 00" West, 105.29 feet;
Thence North 820
17'00"
West, 187.50 feet;
Thence North 140
17'00"
West, 65.00 feet to a point to be known herein as Point "A ";
Thence North 140
17'
00" West, 31.00 feet;
Thence North 400
43'
00" East, 2.98 feet to the True Point of Beginning.
Parcel B:
Lots 2 and 3 of City of Poway Tract No. 89 -13R, the Heritage, Phase 1, Unit 4, in the
City of Poway, County of San Diego, State of California, according to Map thereof No.
14627, filed in the Office of the County Recorder of San Diego County, July 15, 2003.
Assessor's Parcel Number: 277 - 171 -02; 277 - 171 -37; 277 - 171 -38
24 of 26 June 3, 2014 Item #
EXHIBIT B - Site Plan of Reservoir
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25 of 26 June 3, 2014 Item #
EXHIBIT C - Description of Antenna Facilities
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26 of 26 June 3, 2014 Item# A, 5
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26 of 26 June 3, 2014 Item# A, 5