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HomeMy WebLinkAboutVERIZON WIRELESS 1BM 0 &9 `' 3 N LAND LEAST+'. AGREEMENT BETWEEN THE CITY OF SANTA ANA AND VERIZON WIRELESS for JEROME PARK This Agreement, made as of the latter of the signature dates below ( "Effective Date "), is entered into by and between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, hereinafter designated "LESSOR' and Los Angeles SMSA Limited Partnership d/b /a/ Verizon Wireless, having a mailing address at One Verizon Way, Mail Stop 4AW 100, Basking Ridge, New Jersey 07920, hereinafter designated "LESSEE ". LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties ". RECITALS: LESSOR and New Cingular Wireless (hereinafter "AT &T ") entered into that certain land lease agreement A- 2010 -135, dated April 19, 2011 by which AT &T has developed a wireless communication site at Jerome Park; and LESSEE desires to sublease a portion of the tower space from AT &T in order to develop a cellular site at Jerome Park pursuant to a separate written sublease agreement between AT &T and LESSEE (the "Sublease "); and LESSOR has agreed to lease to LESSEE a portion of the property located at 2115 West McFadden Avenue, Santa Ana, Orange County, California ( "Property "), to allow LESSEE to build an equipment room for the wireless communication equipment required by LESSEE to utilize the AT &T tower space. NOW THEREFORE, it) consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. PREMISES. LESSOR hereby leases to LESSEE a portion of that certain parcel of property commonly known as Jerome Park (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 2115 West McFadden Avenue, Santa Ana, California, 92703, and being described as an approximately twelve foot (12') by twenty -two foot (22') space on the ground containing approximately two hundred sixty -four (264) square feet for LISSEE's telecommunications equipment cabinets and space required to co- locate LESSEE's wiring and antennas on the AT &T tower, together with the non - exclusive right for ingress and egress from and to the nearest public right -of-way, seven (7) days a week, twenty -four (24) hours a day, subject to any restrictions stated herein, on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or within the demised premises to the tower space, said demised premises and access and utilities paths (hereinafter collectively referred to as the "Premises ") for access being substantially as described herein in Exhibit `B" attached hereto and made a part hereof. 45022333.1 Jerome Park A-2012.198 2. SURVEY. LESSOR also hereby grants to LESSEE the right to survey the Property and the Premises, and said survey shall then become Exhibit "C" 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 "B ". Costs incurred by LESSEE for such work shall be borne by LESSEE. 3. TERM. This Agreement shall be effective as of the Effective Date; provided, however, the initial term shall commence on the Commencement Date (defined below). Notwithstanding the Commencement Date, the Parties acknowledge that the initial term of this Agreement shall expire upon the expiration or earlier termination of the term of the AT &T Lease, which initial ten (10) year term commenced June 1, 2011 and is set to expire May 31, 2021. The Parties farther acknowledge that this Agreement is contingent upon the execution of the Sublease between AT &T and LESSEE. If for any reason said Sublease is terminated by either party, this Agreement shall also terminate. 4. RENT. After the Commencement Date, rental payments will be due in an annual rental amount of Sixteen Thousand Eight Hundred and No /100 Dollars ($16,800.00) to be paid in equal monthly installments on or before the first day of the month, in advance, to LESSOR or to such other person, firm or place as LESSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. Rent shall commence based upon the date LESSEE commences installation of LESSEE's Facilities (as defined below), or the first day of the month that is six (6) months after the Effective Date of this Agreement, whichever occurs first ( "Commencement Date "). In the event the date of commencing installation of LESSEE's Facilities is determinative and such date falls between the 1 st and 15th of the month, the Agreement shall commence on the Ist of that month and if such date falls between the 16th and the last day of the month, then the Agreement shall commence on the 1st day of the following month. LESSEE agrees that it will notify LESSOR in writing the Commencement Date in the event the Commencement Date is based upon the date LESSEE commences installation of the equipment on the Premises. In the event the Commencement Date is the fixed date set forth above, there shall be no written acknowledgement required. LESSOR and LESSEE acknowledge and agree that initial rental payment(s) shall not actually be sent by LESSEE until thirty (30) days after the Commencement Date or after a written acknowledgement confirming the Commencement Date, if such an acknowledgement is required. If rent is not paid within fifteen (15) days after the due date and provided LESSOR has complied with all applicable notice and cure provisions herein, LESSEE agrees to pay a late charge equal to Six Percent (6 %) of the then - current monthly rent. Rental amounts attributable to partial months shall be prorated on a daily basis. Upon agreement of the Parties, LESSEE may pay rent by electronic funds transfer and in such event, LESSOR agrees to provide to LESSEE bank routing information for such purpose upon request of LESSEE. 5. ANNUAL RENTAL INCREASES. The rent payments shall be subject to an annual rental increase of Four Percent (4 %) per year of the annual rental rate in effect for the immediately previous year, to be increased on each anniversary of the Commencement Date. 6. INITIAL PAYMENT. LESSEE hereby agrees to pay LESSOR a one -time, non- recurring, nonrefundable lump sum administrative fee of Thirty Thousand Dollars ($30,000.00) within thirty (30) days after the Commencement Date. Notwithstanding the above, LESSOR shall refund LESSEE the initial $30,000.00 payment in the event ,LESSEE is unable, due to the sole fault and unreasonable delay of LESSOR, to obtain all Governmental Approvals (defined below) necessary to construct LESSEE's Facilities, within six (6) months after the full execution of this Agreement. 45022333.1 Jerome Park 7. EXTENSIONS. This Agreement may be extended for up to three (3) additional five (5) -year terms (each a "Renewal Term "). Each Renewal Term shall be on the terms and conditions as set forth herein as follows: (i) If LESSOR, in its reasonable, good faith discretion determines that LESSEE's continued tenancy is not in conformity with LESSOR's intended use of the Property, LESSOR shall provide written notice to LESSEE that the Lease will not be extended at least six (6) months prior to the expiration of the initial term. (ii) Thereafter, each subsequent renewal term shall be subject to the following procedure: If LESSEE elects to extend the term, LESSEE shall provide LESSOR with written notice at least six (6) months prior to the end of the then- current term. Within sixty (60) days of receipt of LESSEE's notice, LESSOR shall determine whether such extension is in LESSOR's best interest and, if not in LESSOR's interest, LESSOR shall deny such extension request. If LESSOR does not respond to LESSEE's request in writing within such sixty (60) days, the Lease shall be deemed renewed for an additional Renewal Term. If neither party provides notice as set forth above, the Lease shall continue on a month -to -month basis. 8. GOVERNMENTAL APPROVALS. It is understood and agreed that LESSEE's ability to use the ;Premises is contingent upon its obtaining all of the certificates, permits and other approvals (collectively the "Govermnental 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 herein. 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, LESSEE shall have the right (but not the obligation) to enter the Premises for the purpose of malting necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (collectively "Tests ") to determine the suitability of the Premises for LESSEE's Facilities and for the purpose of preparing for the construction of LESSEE's Facilities. 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 LESSEE determines that the Premises is no longer technically compatible for its intended use or LESSEE, in its sole discretion, determines that the use the Premises is obsolete or unnecessary, LESSEE shall have the right to terminate this Agreement. Notice of 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 LESSEE. All rentals paid to said termination date shall be retained by 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 ( "Plans "), which 45022333.1 Jerome Park approval shall not be unreasonably withheld, conditioned, or delayed; such approval shall be issued by the City Manager 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 the 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 approved the Plans. LESSOR shall not be entitled to receive any additional consideration in exchange for giving its approval of the Plans. If LESSOR disapproves the Plans, then LESSEE will provide LESSOR with revised plans, such revisions to be in compliance with LESSOR's written request for changes. LESSOR will not knowingly permit or suffer any person to copy or utilize the Plans for any purpose other than as provided in this Agreement and will return the Plans to LESSEE promptly upon request. LESSEE maintains the right to perform routine maintenance, repairs, replacements and upgrades without LESSOR approval when no material changes to the exterior appearance of LESSEE's Facilities are made. 10. USE/MAINTENANCE. LESSEE may use the Premises for any lawful activity in connection with the provisions of mobile /wireless commrmications services, including without limitation, the transmission and the reception of communications signals on various frequencies and the construction, maintenance, and operation of related communications facilities. Accordingly, LESSEE shall have the right to construct, maintain, install, repair, and operate on the Premises communications facilities, including but not limited to,transmitting and receiving equipment, batteries, utility lines, transmission lines, transmitting and receiving antennas and supporting structures and improvements (collectively, "LESSEE's Facilities "). All improvements shall be at LESSEE's sole expense and the installation of all improvements shall be at the discretion and option of 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 construction, alterations, modifications or improvements pursuant to Section 9 above. LESSEE agrees that the installation and maintenance of LESSEE's Facilities 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 LESSEE's Facilities for the purpose of repairing or upgrading the communications capabilities of LESSEE's Facilities, 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 substantive physical and/or aesthetic changes to the Premises without the prior approval of LESSOR which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, LESSOR shall not be entitled to receive any additional consideration in exchange for giving its approval of any of the foregoing. Any such changes are subject to the provisions of Section 13 contained herein below. LESSEE shall be responsible for the cost of any and all damage to the Property (including but not limited to concrete and /or asphalt, buildings and /or appurtenances) caused by ,LESSEE. LESSEE shall have the right to install any warning signs on or about the Premises required by federal, state or local law. LESSEE's Facilities shall be constructed and maintained in a manner and with materials that are consistent with the approved Plans. The materials actually used must substantially match the proposed materials and artistic renderings. LESSOR shall provide LESSEE, LESSEE's employees, agents, contractors, subcontractors and assigns with access to the Premises twenty - four (24) hours a day, seven (7) days a week, at no charge to LESSEE. LESSOR represents and warrants that it has full rights of ingress to and egress from the Premises to a public right -of -way, and hereby grants such rights to LESSEE to the extent required to construct, maintain, install and operate LESSEE's Facilities on the Premises, and to remove them therefrom. LESSOR shall, at 0.5022333.1 4 Jerome Park its sole expense, maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to allow reasonable access to the Premises by LESSOR. Except in cases of emergency, LESSEE agrees to provide twenty -four (24) hours notice to LESSOR before any installation, maintenance, replacement or repair is to take place on the Premises. In the event that maintenance to LESSEE's Facilities that is the sole responsibility of LESSEE hereunder is required, such as the repainting of LESSEE's Facilities, such maintenance must be completed by LESSEE within thirty (30) days after LESSEE's receipt of LESSOR's written notice unless the nature of the maintenance, replacement or repair is of such a nature that greater than thirty (30) days may be needed to complete such work, in which event LESSOR hereby grants to LESSEE such additional time as may be reasonably necessary to complete the work. 11. INDEMNIFICATION. A. LESSEE's Indemnity. LESSEE shall indemnify, defend and hold LESSOR, its officers, employees, successors and assigns harmless from and against any and all loss, cost, claim, liability ( "Claims ") occurring on the Premises to the extent arising out of or connected with the negligence or willful misconduct of LESSEE, its officers, agents, employees, or contractors except for Claims to the extent arising out of (i) the negligence or willful misconduct of LESSOR, its officers, agents, employees, successors, assigns, or contractors; (ii) violation of law by LESSOR, its officers, agents, employees, or contractors; (iii) the breach of any duty or obligation by LESSOR under this Agreement; or (iv) any condition relating to the Premises 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 any and all Claims occurring on the Property to the extent arising out of or connected with the negligence or willful misconduct of LESSOR, its officers, agents, employees, or contractors, including, but not limited to City Business as defined in Section 17 below, except for Claims arising out of (i) the negligence or willful misconduct of LESSEE, its officers, agents, employees, or contractors; (ii) violation of law by LESSEE, its officers, agents, employees, or contractors; (iii) the breach of any duty or obligation by LESSEE under this Agreement; or (iv) any condition relating to the Premises which LESSOR has no obligation to repair or maintain. C. Limitation of Liability. Except for indemnification set forth herein, neither party shall be liable to the other, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. 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 of $1,000,000 per accident. If LESSEE has no employees, nor workers' compensation coverage, it must execute aDeclaration available from LESSOR, and update as is necessary. 45022333.1 Jerome Park 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 $1,000,000 per occurrence and in the aggregate. Such insurance shall: (1) include LESSOR, its officers, agents, representatives, employees and volunteers as additional insureds; (2) be primary and not contributory with respect to insurance or self - insurance programs maintained by LESSOR, except claims resulting from LESSOR's negligence or misconduct; and (3) contain standard separation of insured's provisions. LESSEE shall: (a) prior to exercising any right under this Agreement, furnish properly executed certificates of insurance and proof of additional insured status to LESSOR which shall clearly evidence all coverages required above; (b) maintain such required coverage for the period covered by this Agreement; (c) give LESSEE prompt and timely notice of claims made or instituted arising out of LESSEE's operations under this Agreement; and (d) replace such certificates for policies expiring prior to the expiration of this Agreement. LESSEE's insurance will not be canceled without thirty (30) days' prior written notice to LESSOR. 13. INTERFERENCE. LESSEE's Facilities shall not disturb the communications configurations, equipment, and frequency, which exist on the Property on the date this Agreement is fully executed ( "Pre- Existing Communications ") as long as the Pre - Existing Communications operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations, or public safety communication operations, as may be upgraded periodically, and LESSEE's Facilities shall comply with all applicable 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 LESSEE's Facilities or encroaches upon the Premises. 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 and /or immediately terminate this Agreement. Notwithstanding the foregoing, Pre - Existing Communications operating in the same manner as on the date this Agreement is fully executed and in compliance with applicable laws shall not be deemed interference. LESSOR shall require any future tenants, assignees, licensees, or occupants using any portion of the Property for the operation of mobile /wireless or radio communications facilities to comply with the provisions of this Section and shall obtain LESSEE's written consent prior to allowing such use of the Property, which such consent shall not be unreasonably withheld, conditioned, or delayed, provided that LESSEE's consent may be withheld if interference with LESSEE's transmissions, receptions, operations, or use of frequency will result due to such use, whether or not such interference is with LESSEE's frequencies or otherwise. In the event of any interference with LESSOR's public safety communications operations, LESSEE shall have twenty -four (24) hours after receipt of notice to cure the interference, and if LESSEE fails to do so, LESSOR has the right to require that LESSEE cease operating LESSEE's Facilities (except for intermittent testing to determine the source of the interference) until LESSEE is able to recommence operations without causing such interference. If LESSEE's Facilities interfere with LESSOR's public safety communications operations during an emergency, and the same poses an immediate threat of bodily injury or death or substantial property damage, LESSOR may require that LESSEE immediately cease operating LESSEE's Facilities. LESSEE shall reimburse' LESSOR for any actual, reasonable costs that LESSOR incurs to cure any interference with LESSOR's public safety communications operations caused by LESSEE's Facilities. 45022333.1 Jerome Park 14. REMOVAL UPON TERMINATION. LESSEE, upon expiration or earlier termination of the Agreement, shall, within ninety (90) days thereafter, remove all of LESSEE's fixtures and all personal property (other than footings) and otherwise restore the Premises substantially to its original condition, at LESSEE's sole expense, reasonable wear and tear, and casualty excepted. Underground conduits, foundations and equipment/storage buildings may remain at LESSOR's option. LESSOR agrees and acknowledges that all of the equipment, fixtures and personal property of LESSEE shall retrain the personal property of LESSEE and LESSEE shall have the 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 past the aforementioned ninety (90) day period after the expiration or earlier termination 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, fixtures and all personal property are completed. 15. RECORDING AND QUITCLAIM DEED. If requested by LESSEE, LESSOR agrees promptly to execute and deliver to LESSEE a recordable Memorandum of this Land Lease Agreement in the form of Exhibit "F ". LESSEE agrees to execute and record a quitclaim deed or other instrument evidencing the termination of LESSEE's interest in the Property within thirty (30) days following LESSEE's receipt of written notice delivered by LESSOR to LESSEE after the expiration or termination of this Agreement. 16. RIGHTS UPON SALE. Should LESSOR, at any time during the term of this Agreement, decide to sell all or any part of the 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 LESSOR of the portion of this Property underlying the right -of -way herein granted shall be under and subject to the right of LESSEE in and to such right -of -way. As a condition to LESSEE's agreement to subordinate this Agreement, LESSOR shall obtain for the benefit of LESSEE a reasonable non - disturbance agreement from the present and any future mortgagee(s) or holder(s) of a deed of trust confirming that LESSEE's right to quiet possession of the Premises during this Agreement shall not be disturbed, so long as LESSEE is not then in default beyond any applicable care period under this Agreement. 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 landscaping, minor construction, concessionaires, and City sponsored events, located near the Premises, so long as the City Business does not interfere with or impair the operation of LESSEE's Facilities or LESSEE's access to the Premises. 18. TITLE. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of title 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 the Premises by LESSEE as set forth above. 19. NO LIENS. LESSEE will not permit any mechanics' or materialmen's liens on the Property for any labor or material furnished to LESSEE in connection with work performed with respect thereto. 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 45022333.1 Jerome Perk 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 lien. 20. MISCELLANEOUS LESSEE RESPONSIBILITIES. A. Maximum Permissible Exposure. LESSEE shall be required to comply with all applicable radio frequency emission standards adopted by the federal government pertaining to radio frequency emissions. B. LESSEE shall maintain LESSEE's Facilities and shall make all repairs to the Premises necessitated to keep the Premises reasonably safe. LESSOR may require LESSEE to make repairs to and /or replace damaged equipment of LESSEE's Facilities and /or any parts thereto regardless of fault (including but not limited to damage caused by vandalism or acts of god) which repair or replacement is to be completed not later than one (1) week after LESSEE's receipt of notice from LESSOR; provided, however, that the foregoing shall not apply to any damage caused by LESSOR. This time period may be extended with written authorization from the City Manager, which shall not be unreasonably withheld. In the event such authorization is not given and repairs are not made within such one week period, LESSOR may cause such repairs to be made including making said repairs and /or hiring a consultant to make said repairs. LESSOR may charge LESSEE for the reasonable cost of said services. Graffiti on LESSEE'S Facilities shall be removed within forty-eight (48) hours after notification to LESSEE by LESSOR. If said graffiti is not removed within the 48 -hour period, City may remove said graffiti and bill LESSEE for the reasonable cost of services. 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 Facilities 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 provided that such amounts are in fact due within the said sixty (60) -day period. LESSEE has the right to challenge any unreasonable tax assessment. Notwithstanding the foregoing, LESSEE shall not have the obligation to pay any tax, assessment, or charge that LESSEE is disputing in good faith in appropriate proceedings prior to a final determination that such tax is properly assessed provided that no lien attaches to the Property. Nothing in this Paragraph shall be construed as making LESSEE liable for any portion of LESSOR's income taxes in connection with any Property or otherwise. Except as set forth in this Paragraph, LESSOR shall have the responsibility to pay any personal property, real estate taxes, assessments, or charges owed on the Property and shall do so prior to the imposition of any lien on the Property. LESSEE shall have the right, at its sole option and at its sole cost and expense, to appeal, challenge or seek modification of any tax assessment or billing for which LESSEE is wholly or partly responsible for payment. LESSOR shall reasonably cooperate with LESSEE at LESSEE's expense in filing, prosecuting and perfecting any appeal or challenge to taxes as set forth in the preceding sentence, including but not limited to, executing any consent, appeal or other similar document. In the event that as a result of any appeal or challenge by LESSEE, there is a reduction, credit or repayment received by LESSOR for any taxes previously paid by LESSEE, LESSOR. agrees to promptly reimburse to LESSEE the amount of said reduction, credit or repayment. hn the event that LESSEE does not have the standing rights to pursue a good faith and reasonable dispute of any taxes Linder this paragraph, LESSOR will pursue such dispute at LESSEE's sole cost and expense upon written request of LESSEE. D. LESSOR grants LESSEE the right to obtain utilities for the operation of LESSEE's Facilities. LESSEE shall be responsible directly to the serving entities for any and all 45022333.1 Jerome Park utilities required by LESSEE for its use of the Premises. 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. E. LESSEE shall have the right to replace or repair its equipment or any portion thereof during the term of this Agreement. LESSEE will maintain the Premises in a good condition, reasonable wear and tear excepted. 21. EMERGENCY USE OF SITE. LESSEE acknowledges that AT &T has committed to make available to the police, fire and emergency services of the City of Santa Ana space on its communications tower at no cost to LESSEE or said entities, subject to structural analysis. The City of Santa Ana is responsible for maintaining its own equipment. The space to be made available will not create interference with LESSEE's communications operations. The City entities will be afforded 24 -hour access to its equipment at the Property. 22. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between LESSOR and LESSEE and that no verbal or oral agreements, promises or understandings shall be binding upon either LESSOR or LESSEE in any dispute, controversy or proceeding at law, and any 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 affect 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 terms 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 under this Agreement, either in law or in equity. 23. GOVERNING LAW. This Agreement and the performance thereof shall be governed, interpreted, construed, and regulated by the laws of the State of California, with venue in Orange County. 24. ATTORNEYS' FEES. The substantially prevailing party hi any legal action or lawsuit arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including appeals, if any. 25. ASSIGNMENT AND CO- LOCATION. A. LESSEE will not assign or transfer this Agreement without the prior written consent of LESSOR, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, that LESSEE shall, without the prior written consent of LESSOR, have the right to assign its rights under this Agreement or sublease any portion of the Premises, to any of LESSEE's (i) partners, parents, subsidiaries, affiliates, or successor legal entities, (ii) in connection with the sale, exchange, or other transfer of LESSEE's FCC authorization for the geographic area in which the Premises are located or of majority of LESSEE's network assets in the geographic area where the Premises are located, or (iii) in connection with any financing, loan, security interest, pledge, or mortgage of LESSEE's property. No change of stock ownership, partnership interest or control of LESSEE or transfer upon partnership or corporate dissolution of LESSEE shall constitute an assignment hereunder. B. LESSEE acknowledges and agrees that the City policy is to provide for co- location on communication tower facilities and will reasonably facilitate any co- location 45022333.1 Jerome Park subject to the conditions outlined in Paragraph 13 (INTERFERENCE) above. LESSEE further agrees that LESSOR shall retain ownership of any further lease rights with respect to space for additional communication facilities on the Property, other than the Premises which is already leased to Lessee. Any future carrier or co- locator shall enter into a separate grormd lease agreement with the City. 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 courier, provided the 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 following the courier's receipt from 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 Clerk of the Council 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 Courtesy City of Santa Ana — Office of the City Attorney Copies to 20 Civic Center Plaza (M -29) P.O. Box 1988 SantaAna, California 92702 LESSEE: Los Angeles SMSA Limited Partnership d/b /a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. 27. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representatives, successors, administrators and assigns of the Parties hereto. 28. RELOCATION RIGHT. A. Anytime after the initial term, LESSOR shall have the one -time right to cause LESSEE to relocate LESSEE's Facilities to alternate space on the Property; provided however, that such relocation shall (1) be at L'ESSOR's cost and expense which shall be limited to reasonable expenses of moving and re- installing the equipment building, including the cost of City permits and fees which LESSOR may legally pay, (2) be performed by LESSEE or its agents, (3) not result in any interruption of the communications service provided by LESSEE on the Property, (4) not impair, or in any mariner alter, the quality of eommtmications service provided by LESSEE on and from the Property, and (5) be done in accordance with subsections B and C below. Upon relocation of LESSEE's Facilities, the access and utility rights of way will be relocated as required, in the reasonable discretion of LESSOR, to operate and maintain LESSEE's Facilities. 45022333.1 10 Jeanne Park B. LESSOR shall exercise its relocation right under subsection A above by delivering written notice (the "Notice ") to LESSEE. In the Notice, LESSOR shall propose an alternate site within or on the Property to which LESSEE may relocate LESSEE's Facilities. LESSEE shall have sixty (60) days from the date it receives the Notice to evaluate LESSOR's proposed relocation site, 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 thereafter propose another relocation site by Notice to LESSEE 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 up to twelve (12) months after execution of a written agreement between the parties concerning the location and dimensions of the Relocation Site to relocate LESSEE's Facilities to the Relocation Site; provided that any governmental approvals, permits or licenses required for such relocation have been obtained by LESSEE. LESSEE's service will not be interrupted in connection with any such relocation, and LESSEE shall be allowed if necessary to place a temporary cell site and antenna structure on the Property during relocation. Upon relocation of LESSEE's Facilities 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 LESSEE's Facilities, or any part thereof, under subsection 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 shall pay LESSEE the depreciated value for LESSEE's Facilities and equipment, based on a ten - year lease period. 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 Parry written notice of such default. After receipt of such written notice, the defaulting Party shall have thirty (30) days in which to cure any monetary default and forty -five (45) 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) day or forty -five (45) day period, as applicable, if the nature of the cure is such that it reasonably requires more than thirty (30) days or forty -five (45) days, as applicable, and the defaulting Party commences the cure within the thirty (30) day or forty -five (45) day period, as applicable, and thereafter continuously and diligently pursues the cure to completion. The non - defaulting Party may not maintain any action or affect any remedies for default against the defaulting ,Party unless and until the defaulting Party has failed to cure the same within the time periods provided in this Section. If either Party commences an action against the other Party arising out of or in connection with this Agreement, the prevailing Party shall be entitled to have and recover from the losing Party reasonable attorney's fees and costs of suit. 45022333.1 11 Jerome Park 30. ENVIRONMENTAL. A. LESSEE 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, including fuel for an emergency generator. "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 brought onto the Premises /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 environmental and industrial hygiene laws, including 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 conditions or concerns as may now or at any time 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 LESSEE. C. LESSOR shall hold LESSEE harmless and indemnify 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 environmental 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 LESSEE; and (ii) 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 LESSEE. D. In the event LESSEE becomes aware of any hazardous materials on the Property, or any environmental, health or safety condition or matter relating to the Property, that, has not been caused by LESSEE and in LESSEE's sole determination, renders the condition of the Premises or Property unsuitable for LESSEE's use, or if LESSEE believes that the leasing or continued leasing of the Premises would expose LESSEE to undue risks of liability to a government agency or third party, LESSEE will have the right, in addition to any other rights it may have at law or in equity, to terminate this Agreement upon written notice to LESSOR 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 fire or other casualty, provided' LESSOR has not commenced the restoration required to permit LESSEE to resume its operation at the Premises, terminate this Agreement upon twenty (20) days written notice to LESSOR. Any such notice of termination shall cause this Agreement 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 Agreement and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due 45022333.1 12 Jerome Park to the other under this Agreement. If LESSEE decides not to terminate this Agreement, rent shall be abated proportionally to the reduction of use. 32. CONDEMNATION. In the event of any condemnation of the Premises, LESSEE may terminate this Agreement 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 antermas, equipment, its relocation costs and its damages and losses, and any other amount recoverable by LESSEE under condemnation law (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Agreement 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 Agreement and the Parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Agreement. 33. SUBMISSION OF LEASE. The submission of this Agreement for examination does not constitute an offer to lease the Premises and this Agreement becomes effective only upon the full execution of this Agreement by the Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and shall not invalidate the remaining provisions of this Agreement. 34. APPLICABLE LAWS. LESSEE shall use the Premises for the use described herein 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 LESSEE regarding any compliance required by LESSEE in respect to its use of the Premises. 35. SURVIVAL. The provisions of the Agreement relating to indemnification from one Party to the other Party shall 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 are inserted for convenience only and are not intended to be part of the Agreement. They shall not affect or be utilized in the construction or interpretation of the Agreement. 37. PROPERTY SPECIFIC ACCESS RULES/REGULATIONS. LESSEE agrees to abide by all riles and regulations of the Property and Premises imposed by LESSOR as set forth in Exhibit D, attached hereto, as the same may be changed from time to time upon reasonable notice to LESSEE and as adopted and applied in a uniform and non - discriminatory manner, and otherwise in accordance with applicable law, rules and regulations. These rules and regulations are specific to the Premises and are imposed to insure the proper maintenance, 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. In the event of a conflict between the terms of this Agreement and the rules and regulations, the terms of this Agreement shall govern. 38. POWERING DOWN DURING MAINTENANCE / REPAIR. LESSEE agrees that daring all maintenance on the Communications Facility by LESSOR or other lessees or users of the Property, while following the procedures and guidelines sett forth by the Occupational Safety and Health Administration (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 45022333.1 13 Jerome Park jurisdiction over LESSEE) due to radiation, the effected transmitters of LESSEE will be turned off by LESSEE until the unsafe condition no longer exists. The earliest practicable notice will be given to LESSEE using the information in Exhibit E, as applicable. 39. TERMINATION. A. Compelled Termination: If, during the Agreement term, there is a determination made pursuant to an unappealable order of a county, state, or national governmental health agency having proper jurisdiction over LESSEE's operations that LESSEE's use of the Premises poses a human health hazard which cannot be remedied and that LESSEE must cease all operations on the Premises, then LESSEE shall immediately cease all operations on the Premises and this Agreement shall terminate as of the date of such order. In the event the FCC, 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 LESSEE's use as set forth in this Agreement presents a material risk to the public health or safety and that LESSEE must cease all operations on the Premises, LESSOR may terminate this Agreement upon fourteen (14) days notice to LESSEE. B. Termination by LESSEE: Without limiting LESSEE's other termination rights hereunder, LESSEE may terminate this Agreement by notice to LESSOR if (i) LESSEE does not obtain all permits, consents, easements, non - disturbance 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, install, maintain, replace, or remove LESSEE's Facilities, or if any such approval is canceled, expires or is withdrawn or terminated without any fault of LESSEE, or (ii) LESSOR fails to have proper ownership of the Premises or the authority to enter into this Agreement, or (iii) LESSOR fails to cure a default pursuant to Section 29, or (iv) by LESSEE upon written notice to LESSOR for any reason or no reason, at any time prior to commencement of construction by LESSEE. Upon termination, all prepaid rent shall be retained by LESSOR, unless termination is pursuant to (ii) through (iii) above as the result of LESSOR's default. C. Termination by LESSOR: LESSOR may terminate this Agreement if LESSEE fails to perform any of its obligations pursuant to this Agreement (including all attached Exhibits /Attachments) after giving written notice to LESSEE and reasonable time to cure as set forth in Section 29 above. 40. MISCELLANEOUS PROVISIONS. A. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and each Party shall indemnify the other fully, including reasonable costs and reasonable attorney's fees, for any injuries or damages incurred in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. B. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. C. LESSOR shall not have unsupervised access to LESSEE's equipment and LESSEE's Facilities, except in cases of exigent circumstances or emergency situations (in which case, LESSOR shall provide LESSEE notice of its access as soon as possible). 45022333.1 14 Jerome Park IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of (lie last date written below. ATTEST: MARIA D. HUIZAR Cleric of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: AURA Assistant City Attor.. y LESSOR: CITY OF SA TA ANA Xr KEVIN O' KE Interim City Manager Date: 05 2013 LESSEE: LOS ANGELES SMSA LIMITED PARTNERSHIP dba VERIZON WIRELESS By: AirTouch Cellular its: General Part By Print Name: Brian Mecum Its: Area Vice Pre r ent Network Date: L.�+ �% er 45022333.1 15 .Jerome Park EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY APN: 109 - 050 -30 All that certain real property located in the County of Orange, State of California, being more particularly described as follows: Lots 31 and 32 of Re -plat of Santa Ana Acres, in the City of Santa Ana, County of Orange, State of California, as shown on a map thereof recorded in Book 5, at Page 8 of Miscellaneous Maps, records of said Orange County. That certain portion of public street in the State of California, County of Orange, City of Santa. Ana, shown as Center Street 30 feet wide on a map of Santa Ana Acres recorded in Book 5, Page 8 of Miscellaneous Maps of said Orange County, said portion bounded Southerly by the North line of McFadden Avenue, shown on said map as Fairview East Avenue, and bounded Northerly by the Westerly extension of the Northerly line of said Lot 32. Except therefrom the Easterly 30 feet of Lot 31 conveyed to the Orange County Flood Control District by deed recorded June 10, 1974 in Book 11167 Page 340 of Official Records. LESSOR INITIALS: 45022333.1 16 Jerome Park EXHIBIT B LEGAL DESCRIPTION OF THE PREMISES SITE PLANS/ DESCRIPTIVE RENDERINGS However, it is expressly agreed and understood by and between LESSOR and LESSEE that the exact and precise location of LESSEE's Facilities are subject to review and approval by the planning and /or zoning Boards having jurisdiction over the "Premises ". Therefore, it is expressly agreed and understood by and between LESSOR and LESSEE that the precise location of the Premises as shown on Exhibit `B" may be modified by LESSEE in order to comply with and obtain necessary planning and/or zoning approvals, and any and all other approvals necessary for LESSEE's intended use of the property. The Premises as described herein may therefore be modified by LESSEE to reflect the final engineering design. An amended Exhibit "B" (if necessary) will be provided by LESSEE and attached to the lease in place of the existing Exhibit "B ", a copy of which will be provided to LESSOR for review prior to being incorporated into the Agreement. 45022333.1 17 ,Jerome Park LL J-07 W." 1336118 HDiN30 OD T "IP IDAHiS U91NDO O UZ-{LO -L NJV i LZ 4LO-LOV NdV Ps J-0-T Hod 1 -O'7 'H(3cf (-SJO W." 1336118 HDiN30 OD T IDAHiS U91NDO O UZ-{LO -L NJV i LZ 4LO-LOV NdV Ps J-0-T Hod 1 -O'7 'H(3cf W." 1336118 HDiN30 EXHIBIT C [INTENTIONALLY OMITTED] 45022333.1 18 Jerome Park EXHIBIT D PROPERTY SPECIFIC ACCESS RULESIREGULATIONS 1. 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. 2. 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 LESSEE's Facilities or LESSEE's access to the Premises. 3. 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 shall use commercially reasonable efforts to provide LESSEE an alternate route to access the Premises during such times. 45022333.1 19 Jerome Park CONTACT INFORMATION: LESSOR'S TECHNICAL CONTACTS: Name: Santa Ana Parks, Recreation and Community Services Agency 1. Ron Ono Address: 26 Civic Center Plaza (M -75) Santa Ana, CA 92702 Daytime Phone No.: Ron: (714) 571 -4220 Facsimile No.: (714) 571 -4209 24 -Hour Contact No.: Despatch Center: N/A LESSEE'S TECHNICAL CONTACTS: Name: NOCC (Network Operations Control Center) Address: N/A Daytime Phone No.: (800) 264 -6620 Facsimile No.: N/A 24 -Hour Contact No.: (800) 264 -6620 Dispatch Center: (800) 264 -6620 45022333.1 20 Jerome Park EXHIBIT F MEMORANDUM OF LAND LEASE AGREEMENT Prepared by & When Recorded Return to: McGuireWoods LLP 1800 Century Park East, 8th Floor Los Angeles, California 90067 Attention: Cherie Y. Song, Esq . APN: 109- 050 -30 (Space Above This Line For Recorder's Use Only) Re: Cell Site Number: Cell Site Name: Jerome Park FA Number: Address: 2115 W. McFadden Avenue, Santa Ana, CA THIS MEMORANDUM OF LAND LEASE AGREEMENT is made and entered into as of _ , 2012, by and between City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "Lessor ") and Los Angeles SMSA Limited Partnership d /b /a Verizon Wireless ( "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 Orange, City of Santa Ana commonly known as 2115 W. McFadden Avenue, Santa Ana, CA 92703, 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, and incorporated herein by reference (the "Agreement ") for an initial term of ten (10) years, commencing on the Commencement Date, as defined in the Agreement, 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 of way for rights of access to the Property and to electrical and telephone facilities serving the Property. [Signature Page Follows] 45022333.1 21 Jerome Park IN WITNESS WHEREOF, the parties have executed the Memorandum as of the day and year first above written. LESSEE: LOS ANGELES SMSA LIMITED PARTNERSHIP dba VERIZON WIRELESS By: AirTouch Cellular Its: General Partner By: Print Name: Walter L. Jones, Jr. Its: Area Vice President Network Date: LESSOR: City of Santa Ana By: Name: PAUL M. WALTERS Title: Interim City Manager Date: _ Address: 20 Civic Center Plaza Santa Ana, CA 9270 45022333.1 22 Jerome Park RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: McGuireWoods LLP 1800 Century Park East, 8th Floor Los Angeles, California 90067 Attention: Alejandro Ramirez, Esq. APN: 109- 050 -30 (Space Above This Line For Recorder's Use Only) Re: Cell Site Number: Cell Site Name: Jerome Park FA Number: Address: 2115 W. McFadden Avenue, Santa Ana, CA MEMORANDUM OF LAND LEASE AGREEMENT THIS MEMORANDUM OF LAND LEASE AGREEMENT is made and entered into as of , 20, by and between City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "Lessor "), and Los Angeles SMSA Limited Partnership, d /b /a Verizon Wireless ( "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 Orange, City of Santa Ana commonly known as 2115 W. McFadden Avenue, Santa Ana, CA 92703, a legal description of which is shown in Exhibit A attached hereto and incorporated herein by reference, wider the terms and conditions of the unrecorded Land Lease Agreement by and between Lessor and Lessee, and incorporated herein by reference (the "Agreement "), for an initial term that shall commence on the Commencement Date (as defined therein) and shall expire upon the expiration or earlier termination of the term of the AT &T Lease, as defined in the Agreement, which initial ten (10) year term commenced June 1, 2011 and is set to expire May 31, 2621, 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 of way for rights of access to the Property and to electrical and telephone facilities serving the Property. [Signature Page Follows] 444325423.1 Jerome Park IN WITNESS WHEREOF, the parties have executed the Memorandum as of the day and year first above written. LESSEE: LOS ANGELES SMSA LIMITED PARTNERSHIP dbaVERIZON WIRELESS By: AirTouch Cellular Its: General Partne By: Print Name: Walter L. Jones, Jr. Its: Area Vice Preeht NZtwork Date: /( ) LESSOR: CITY OF SANT By: 6-1 Name: KEVIN G'ROURKE Title: Interim City Manager Date: Address: 20 Civic Center Plaza Santa Ana, CA 92702 444325423.2 Jerome Park STATE OF COUNTY OF On LESSOR ACKNOWLEDGMENT before me, personally appeared ss. basis of satisfactory evidence to be the persons instrument and acknowledged to me that they e and that by their signatures on the instrument persons acted, executed the instrument. certify under PENALTY the foregoing paragraph is true WITNESS my hand and 944325423.1 Jerome Park seal. who proved to me on the hos names are subscribed to the within &ted the same in their authorized capacities, persons, or the entity upon behalf of which the under the laws of the State of California that [Seal] CALIFORNIA ALL - PURPOSE ACKNOWLEDGEMENT State of California County of Orange I SS City of Santa Ana On this 5th day of September, 2013, before me, Maria D. Huizar , Notary Public, personally appeared Kevin O'Rourke who proved to me on the basis of satisfactory evidence to be the pqqDsgk� Wsons whose a4ffiii /names re- subscribed to the within instrument and acknowledged to me that(Wshefthey executed the same in /her /their authorized Dap /-Gapacities and that by fi e#their sCnna�signatur-es on the instrument the pgEr 5-n /pereons, or the entity upon behalf of which the er�jWpersoms acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct. Witness my hand and official seal. NOTARY SEAL MARIA D HUIZAR Commission $ 1974202 L4O Notary Public - California Orange County M Comm. Ea fires Apr 5 2016 + CAPACITY CLAIMED BY SIGNER: ❑ Individual(s) ❑ Corporate ❑ Officers Titles) ❑ Partner(s) ❑ General Partner of a Limited ❑ Partnership ❑ Attorney -in -Fact ❑ Trustee (s) ❑ Subscribing Witness ❑ Guardian /Conservator ❑ Other: Witness my hand and official seal. Signature of Notary SIGNER IS REPRESENTING: THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE BELOW: VERIZON WIRELESS FOR JEROME PARK TITLE OR TYPE OF DOCUMENT: LAND LEASE AGREEMENT NUMBER OF PAGES: DATE OF DOCUMENT: SIGNER (S) OTHER THAN NAMED ABOVE: NOTARY ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF ORANGE On , 2i`3 before me, �� a Notary Public, personally appeare 3r au Mecum who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. certify tinder PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Sign ure of Notary Public OiAwn p015275 Commis ubl S raliiornia NotarNYlV rsil do County _ usr 26, 2 Place Notary Seal Above EXHIBIT A Legal Description of the Property All that certain real property situated in the County of Orange, state of California, described as follows: Lots 31 and 32 of Re -plat of Santa Ana Acres, In the City of Santa Arta, County of Orange, State of California, as shown on a map thereof recorded in Book 5, at Pane 8 of Miscellaneous Maps, records of said Change County: That certain portion of public street In the State of California; County of Orange, City of Santa Ana, shown as Center Street 30 feet wide on a map of Santa Arta Acres recorded in Book 5, Page 8 of Miscellaneous Maps of said Orange County, said portion bounded Southerly by the North line of McFadden Avenue, shown on said map as Fairview East Avenue, and bounded Northerly by the westerly' extension of the Northerly line of said Lot 32. Except therefrom the Easterly 30 feet of Lot 31 conveyed to the Orange County Flood Control District by deed recorded June 10, 1974 in Book 11167 Page 340 of Official Records, Assessor's Parcel Number: 109-050-30 #44325423.1 Jerome Park 1'01,4 _.4 (/'-Z -I ) CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDOIYVYV) 09/23/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ADD Risk services Northeast, INC. MOrristowr NJ Office CONTACT NAME: PHONE (866) 283 -7122 FAX (800) 363 -0105 (AC. No. Eat): AS NO.: 44 Whippany Road, Suite 220 MorristOWM NJ 07960 USA EMAIL ADDRESS: INSURERIS) AFFORDING COVERAGE NAIC If 5094699 INSURED INSURER A: National Union Fire Ins c0 of Pittsburgh 19445 cellCo Partnership dba Verizon Wireless One Verizon Way Basking Ridge NJ 07920 USA INSURER e: X COMMERCIAL GENERAL LIABILITY INSURER O: INSURER D: /q tot tot INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 570051309375 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Limits shown are as requested MISS LTR TYPE OF INSURANCE INSR ME POLICY NUMBER POLIC EFF MMIDD P L E MMIODA" ri LIMITS A GENERAL LIABILITY 5094699 EACH OCCURRENCE $1,000,000 X COMMERCIAL GENERAL LIABILITY PREMISES Eacccurmnce $1,000,000 CLAIMS -MADE [K ]OCCUR MED EXP (Any one parson) $10,000 PERSONAL A ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN'LAGCREGATELIMIT APPLIES PER'. PRODUCTS - COMPIOP AGO $2,000,000 X POLICY PRO LOG AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea eccident BODILY INJURY ( Per P..dn) ANY AUTO ALL OWNED SCHEDULED rry A3 rl'�'�AY py TO � ����� BODILY INJURY (Per accident) AUTOS AUTOS HIRED AUTOS NON -OWNED AUTOS SL`d APPI i_ PROPERTY DAMAGE accident) nN✓ UMBRELLA LIAR OCCUR LISA Attorn y� EACH OCCURRENCE AGGREGATE EXCESS LIAe CLAIMS -MADE Assistant Ci y OED I RETENTION WORKERS COMPENSATION AND EMPLOYERS'LIABILITY YIN ANY PROPRETOR /PARTNERIEXECUTIVE WC STATU- OTH. TORY LIMITS ER E. L. EACH ACCIDENT OFFICER /MEMBER EXCWOE09 ❑NIA E.L. DISEASE -EA EMPLOYEE (Mandatory in NH) Iry describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE- POLICY LIMIT DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ADDED 101, Additional Remarks Schedule, If more space Is reruled) Named Insured also includes LOS Angeles SMSA Limited Partnership dba Veri Zon Wireless by Air touch cellular Its General Partner. RE: Jerome Par( Location No. 250206. city of Santa Ana officers and Jerome Parl(, agents, representatives, employees and volunteers are included as Additional Insured, under the General Liability policy where required by written contract. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City Of Santa Ana AUTHORIZED REPRESENTATIVE clerk of the council 20 civic Center Plaza M -30 PO box 1988 /f Santa Ana CA 92702 USA A! .0 v 4 a 2 O Z w u L) ©1988 -2010 ACORD CORPORATION. All rights reserved, ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD ENDORSEMENT # This endorsement, effective 12:01 A.M. 06/30/2013 forms a part of Policy No. GL 509 -46 -99 issued to CELLCO PARTNERSHIP DBA VERIZON WIRELESS, INC. By NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA ADDITIONAL INSURED - PRIMARY INSURANCE This endorsement modifies insurance provided under the following: COMMERCIAL LIABILITY COVERAGE FORM As stated in SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS, 6. OTHER INSURANCE, the following wording appears as part of 6. OTHER INSURANCE: However, coverage under this policy afforded to an additional insured will apply as primary insurance where required by contract, and any other insurance issued to such additional insured shall apply as excess and noncontributory insurance. Manuscript Authorized Representative Nync ii } Cip"M Si0RGK LISP E pttornev pssistanity- 6 POLICY NUMBER: GL 509 -46 -99 CELLCO PARTNERSHIP DBAVERIZON WIRELESS COMMERCIAL GENERAL LIABILITY CG 20 10 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization (s) Locations Of Covered Operations City of Santa Ana, its officers, employees, agents, and representatives. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury ", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law: and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. APPROVED AS TO FORM O E. Assistant City Attorney CG 20 10 04 13 © Insurance Services Office, Inc., 2012 �/ Page 1 of 2 C. With respect to the insurance afforded to these 2. Available under the applicable Limits of additional insureds, the following is added to Insurance shown in the Declarations; Section III — Limits Of Insurance: whichever is less. If coverage provided to the additional insured is This endorsement shall not increase the required by a contract or agreement, the most we applicable Limits of Insurance shown in the will pay on behalf of the additional insured is the Declarations. amount of insurance: 1. Required by the contract or agreement; or LBSA E. RCK Assistant City Attorney L� Page 2 of 2 © Insurance Services Office, Inc., 2012 /�' CG 20 10 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT# This endorsement, effective 12:01 A.M. 06/30/2013 forms a part of Policy No. GL 509 -46 -99 issued to CELLCO PARTNERSHIP DBA VERIZON WIRELESS, INC. By NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA (The above "attaching clause "need be completed only when this endorsement is issued subsequent to the preparation of tile policy). NOTICE OF CANCELLATION, NONRENEWAL AND CHANGES TO CERTIFICATE HOLDER This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, 10. CHANGES is amended to add the following: We will mail or deliver a prior written notice of a "material change," consented to by the first Named Insured shown in the Declarations and us, to the first Named Insured's last known mailing address and to those entities set forth in the schedule below. We will provide written notice of a "material change" at least NINETY (90) days prior to the effective date of "material change." For purposes of this paragraph, "material change" means any of the following: (i) a reduction in the Limits of Liability set forth in the policy Declarations; (ii) a deletion of or addition to the list of Coverages set forth in Section A of this policy; or (iii) a change in the Policy Period set forth in the policy Declarations. SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, 12. CANCELLATION is amended to add: We may cancel this policy by mailing or delivering to those entities set forth in the schedule below, written notice of cancellation at least: ,AppROVEO AS TO FO TUVt LISA E. StORCK Assistant City Attorney S6 a. Ten (10) days before the effective date of cancellation if we cancel for nonpayment of premium; or b. NINETY (90) days notice before the effective date of cancellation if we cancel for any other reason. SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS, 20. NONRENEWAL is amended to add the following: If we decide not to renew this policy, we will mail or deliver to those entities set forth in the schedule below, prior written notice of non - renewal not less than NINETY (90) days before the expiration date of the policy. If notice is mailed, proof of mailing will be sufficient proof of notice. SChP.dAP Additional Insured Governmental Entities and Political Subdivisions on file with the Insurer. r AUTHORIZED REPRESENTATIVE pj�OVVD AS TO r LW\ E. ARi ney s Assistant City"a cv