HomeMy WebLinkAboutCC AG PKT 2003-07-28 #K AGENDA REPORT
DATE: July 28, 2003
TO: Honorable Mayor and City Council
THRU: John B. Bahorski, City Manager
FROM: June Yotsuya, Assistant City Manager
SUBJECT: Approval of First Amendment to Ground Lease for AT &T Wireless
Cellular Tower located at 3131 Beverly Manor Road
SUMMARY OF REQUEST
City Council to approve amendment to the ground lease for an existing cellular tower site located at 3131
Beverly Manor Road.
DISCUSSION
Since 1993, the City has leased a portion of City property located at 3131 Beverly Manor Road for
location of a cellular tower. The tower is located at the rear of Fire Station 48. The original ground lease
was for a period of five years with an additional five -year option, covering a total period from September
1, 1993 to August 31, 2003. The original lessee was Los Angeles Cellular Telephone who later
consolidated with AT &T Wireless.
The City has negotiated a first amendment to the ground lease that provides: 1) compliance with new
federal laws regarding the provision of enhanced emergency 911 services from mobile phones by
allowing the installation of additional antennas and associated cables and equipment; 2) annual
adjustment in rent based on the Consumer Price Index (CPI) and, 3) extension of term of lease for an
additional five years with an option to extend the lease for two additional five -year periods. City
Attorney's office and staff have reviewed the amending documents and recommend the City Council
approve the lease extension.
FISCAL IMPACT
The City will continue to receive rental revenue for the ground lease of the cellular tower location. The
current rate is $1217 a month that will adjust annually based on the CPI.
RECOMMENDATION
Staff recommends City Council approve the first amendment to the ground lease for AT &T Wireless'
cellular tower located at 3131 Beverly Manor Road.
Agenda Item n
July 28, 2003
City Council Agenda Report — AT &T Wireless Cellular Tower Ground Lease at 3131 Beverly Manor Rd.
Page 2
Submitted by:
dir ..
L�
J e Yotsu , ACM
NOTED ' ■ ! A' ' ' • VED:
,Ai i
John B. B. f rski, City Manager
Attachment: Amending Agreement
Cell Site No. C453
Market: Los Angeles
Address: 3131 Beverly Ma or Rd., Seal Beach, CA
FIRST AMENDMENT TO GROUND LEASE
j k
THIS FIRST AMENDMENT TO GROUND L EASE ( "Amendment ") dated as of the
date last executed below, A by and between the City of Seal Beach, California, a municipal
corporation, with an officelat 211 8 St., Seal Beach California 90702 (hereinafter referred to as
"Landlord ") and AB CELLkLAR LA, LLC, a Delaware limited liability company d/b /a AT &T
Wireless (formerly known as,OS ANGELES CELLULAR TELEPHONE COMPANY, a
California general partnershipNving an office i t 2729 Prospect Park Drive, Rancho Cordova,
CA 95670 (hereinafter referred to as "Tenant ").
WHEREAS, Landlord and Ten.N,t ente ed into a Ground Lease dated August 23, 1993
whereby Landlord leased to Tenant certai 'rimises, therein described, that are a portion of the
Property located at 3131 Beverly Manor Ro. Seal Beach, California, at the rear of fire station
48 ( "Lease "); and
/
WHEREAS, Landlord and Tenant O esire to . s end the Lease to modify the notice
address; and
/
WHEREAS, Landlord and Ten. ' t desire to amend . e Lease to permit Tenant to comply
with new federal laws regarding the provision of enhanced E • ∎ ergency 911 Services from mobile
phones by allowing the installation of additional antennas and a sociated cables and equipment;
and /
WHEREAS, Landlord and 'enant desire to amend the Lease o extend the term of the
Lease; and
WHEREAS, Landlord ar Tenant desire to adjust the rent in conjunction with the
modifications to the Lease cont.2ned herein; and
WHEREAS, Landlord : d Tenant, in their mutual interest, wish to amend the Lease as
set forth below accordingly.
NOW THEREFO' , in consideration of the foregoing and other good and valuable
consideration, the receipt . - d sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
1. Notices. : ection 30 of the Lease is hereby amended as follows: Notices. All
notices, requests, dem. ds and communications hereunder will be given by United States mail,
first class certified or r; gistered, return receipt requested, postage prepaid; or by a nationally
recognized overnight c . ier, postage prepaid. Notice shall be deemed received on (a) the third
business day following deposit in the U.S. mail or (b) the day of delivery, if delivered by
overnight courier. Notice will be addressed to the parties as follows. As to Tenant, AT &T
Wireless, Attn.: Lease Management Department, 2729 Prospect Park Drive, Rancho Cordova,
S7296.0001 742162 -2
CA 95670, Re: Cell Site # C453; with a copy to AT &T Wireless,12900 Park Plaza Drive,
Cerritos, California 90703 -8573 Attn.: Legal Department; Re: Cell Site # C453; and as to
Landlord, City of Seal Beach, Attn: City Manager, 211 8 St., Seal Beach, California 90740.
Either party hereto may change the place for the giving of notice to it by thirty (30) days prior
written notice to the other as provided herein.
2. Emergency 911 Service. Without the payment of additional rent, Landlord
agrees that Tenant will be permitted to install additional Emergency 911 Service antennas and
associated cables and equipment in the future at a location on the Property mutually acceptable
to Landlord and Tenant.
3. Extension of Term. The Lease is hereby renewed for one (1) additional period
of five (5) years upon the same terms and conditions of the Lease, as modified by this
Amendment. In addition, Landlord hereby grants to Tenant an option to extend the Term for two
(2) additional periods of five (5) years each on the same terms and conditions of the Lease, as
modified by this Amendment. Tenant may exercise this option by notifying Landlord in writing
of Tenant's intention to renew the Lease at least sixty (60) days prior to the expiration of the
term .
4. Rent. Section 5 of the Agreement is hereby amended as follows: On September
1, 2003, and on September 1 of each year thereafter (the "Adjustment Date ") the Rent will be
adjusted as follows:
The base for computing the adjustment is the Consumer Price Index for All Urban
Consumers for the Los Angeles - Riverside -Orange County Metropolitan Area published by the
United States Department of Labor, Bureau of Labor Statistics ( "Consumer Price Index "), which
is published for the second calendar month preceding the date of the commencement of the Term
( "Beginning Index "). If the Index published for the second calendar month preceding the
Adjustment Date ( "Extension Index ") has increased over the Beginning Index, the monthly rent
for the period until the next Adjustment Date shall be set by the following formula:
New Rent = (prior Rent) x (CPI percentage increase) + (prior Rent)
If the Extension Index has not increased over the Beginning Index, the monthly rent for the
period until the next Adjustment Date shall remain unchanged.
In the event the Consumer Price Index is converted to a different standard of reference
base or otherwise revised, the determination of New Rent will be made with the use of such
conversion factor, formula or table for converting the Consumer Price Index as may be published
by the Bureau of Labor Statistics, or if the Bureau should fail to publish same, then with the use
of such conversion factor, formula or table for converting the Consumer Price Index as may be
published by Prentice Hall, Inc. or any other nationally recognized publisher of similar statistical
information selected by Landlord. If the Consumer Price Index ceases to be published and there
is no successor thereto, such other index as Landlord and Tenant may agree upon will be
substituted for the Consumer Price Index. If they are unable to agree, then such matter will be
submitted to arbitration.
S7296.0001 742162 -2 -2-
Notwithstanding anything herein, in no event will the increase in Rent be greater than
eight percent (8 %) of the Rent for the period immediately preceding the increase in Rent. If the
CPI percentage increase for a particular year exceeds 8 %, the increase in Rent shall be set as
follows:
New Rent = (prior Rent) x 0.08 + (prior Rent)
5. Cooperation; Indemnity. Section 8 of the Agreement is hereby amended by
replacing the existing text with the following:
Landlord shall fully cooperate with Tenant by executing and joining in applications for
governmental permits or approvals covering Tenant's use, construction and/or occupation of the
Premises, including the Easements, provided that Tenant shall reimburse Landlord for any and
all reasonable expenses attributable to said cooperation. Tenant shall keep the Property and the
Premises free from mechanics' liens arising out of Tenant's construction.
Tenant agrees to defend, indemnify, protect and hold harmless Landlord and its agents,
officers, employees, attorneys and volunteers from and against any and all claims, demands,
obligations, causes of action, and lawsuits, and all damages, fines, judgments, costs (including
settlement costs), and expenses associated therewith including the payment of actual attorneys
fees, court costs, litigation costs, consultant or expert fees, and other expenses associated
therewith, arising out of, related to, or resulting from asserted or established liability for damages
or injuries to any person or property, including injury to Tenant's employees, agents or officers
which arise from the acts or omissions of Tenant and its agents, officers or employees, and all
expenses of investigating and defending against same.
6. Reservations. Landlord, for itself and other tenants of the Premises, reserves
such easements through the Premises that Landlord deems necessary or desirable, including
without limitation the right to construct, improve, use, maintain and repair utilities, services,
pipes and conduits in and through Tenant's Easements, so long as such easements do not
unreasonably interfere with the use of the Premises by Tenant. Notwithstanding any provision in
the Agreement to the contrary, the Easements granted to Tenant under this Agreement are
nonexclusive and Landlord shall retain the right to grant nonexclusive easements to other parties,
provided that Landlord will only grant such additional easements if such other parties agree that
they will not disturb Tenant's communications configurations or equipment, they will not enter
any structure owned by Tenant without the consent of Tenant, and that they will comply with all
noninterference rules of the Federal Communications Commission.
7. Insurance. Section 14 of the Agreement is deleted and replaced with the
following:
Tenant shall, at its expense, procure and maintain for the duration of the Agreement
insurance against claims for injuries to persons or damages to property which may arise from or
in connection with the performance of the Agreement by the Tenant, its agents, representatives,
employees or subcontractors. Such insurance shall meet at least the following minimum levels
of coverage:
S7296 0001 742162 -2 -3-
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest
version of the following: (1) General Liability: Insurance Services Office Commercial General
Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services
Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers'
Compensation and Employers' Liability: Workers' Compensation insurance as required by the
State of California and Employer's Liability Insurance.
(b) Minimum Limits of Insurance. Tenant shall maintain limits no less than:
(1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property
damage. If Commercial General Liability Insurance or other form with a general aggregate limit
is used, either the general aggregate limit shall apply separately to this Agreement/location or the
general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability:
$1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation
and Employer's Liability: Workers' compensation limits as required by the Labor Code of the
State of California. Employers Liability limits of $1,000,000 per accident for bodily injury or
disease.
(c) Insurance Endorsements. The insurance policies shall contain the following
provisions, or Tenant shall provide endorsements on forms supplied or approved by Landlord to
add the following provisions to the insurance policies:
(1) General Liability. The general liability policy shall be endorsed to state
that: (i) Landlord, its directors, officials, officers, employees, agents and volunteers shall be
covered as additional insureds with respect to the Lease or any activities or operations conducted
by or on behalf of the Tenant on or related to the Property, including materials, parts or
equipment furnished in connection with such work; and (ii) the insurance coverage shall be
primary insurance as respects Landlord, its directors, officials, officers, employees, agents and
volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Tenant's
scheduled underlying coverage. Any insurance or self - insurance maintained by Landlord, its
directors, officials, officers, employees, agents and volunteers shall be excess of Tenant's
insurance and shall not be called upon to contribute with it.
(2) Automobile Liability. The automobile liability policy shall be endorsed
to state that: (i) Landlord, its directors, officials, officers, employees, agents and volunteers shall
be covered as additional insureds with respect to the ownership, operation, maintenance, use,
loading or unloading of any auto owned, leased, hired or borrowed by the Tenant or for which
the Tenant is responsible; and (ii) the insurance coverage shall be primary insurance as respects
Landlord, its directors, officials, officers, employees, agents and volunteers, or if excess, shall
stand in an unbroken chain of coverage excess of the Tenant's scheduled underlying coverage.
Any insurance or self - insurance maintained by Landlord, its directors, officials, officers,
employees, agents and volunteers shall be excess of the Tenant's insurance and shall not be
called upon to contribute with it.
(3) Workers' Compensation and Employers Liability Coverage. If
requested by Landlord, the insurer shall agree to waive all rights of subrogation against
Landlord, its directors, officials, officers, employees, agents and volunteers for losses paid under
the terms of the insurance policy which arise from the actions of or on behalf of Tenant.
S7296.0001.742162 -2 -4-
(4) All Coverages. Each insurance policy required by this Agreement shall
be endorsed to state that: (i) coverage shall not be suspended, voided, or canceled except after
thirty (30) days prior written notice has been given to Landlord; and (ii) any failure to comply
with reporting or other provisions of the policies, including breaches of warranties, shall not
affect coverage provided to Landlord, its directors, officials, officers, employees, agents and
volunteers.
(d) Separation of Insureds; No Special Limitations. All insurance required by this
Section shall contain standard separation of insureds provisions. In addition, such insurance
shall not contain any special limitations on the scope of protection afforded to Landlord, its
directors, officials, officers, employees, agents and volunteers.
(f) Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best's rating no less than A -VII, licensed to do business in California, and satisfactory to
Landlord.
(g) Verification of Coverage. Tenant shall furnish Landlord with original
certificates of insurance effecting coverage required by this Agreement on forms satisfactory to
Landlord. The certificates and endorsements for each insurance policy shall be signed by a
person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided
by Landlord if requested.
(h) Insurance to Remain in Effect. Tenant agrees that if it does not keep the
aforesaid insurance in full force and effect Landlord may either immediately terminate this
Agreement or, if insurance is available at a reasonable cost, Landlord may take out the necessary
insurance and pay, at Tenant's expense, the premium thereon.
8. Mutual Indemnification. The first sentence of Section 35.2 is hereby deleted
and replaced with the following:
Except to the extent that such Hazardous Substances are introduced into the Property as a
result of Tenant's conduct, the conduct of Tenant's officers, employees, agents and volunteers,
or the conduct of any third party who acts while this Lease is in effect, Landlord agrees to
indemnify, defend (with counsel selected by Tenant and satisfactory to Landlord) and hold
Tenant harmless from any claims, judgments, damages, penalties, fines, costs, liabilities
(including sums paid in settlements of claims) or losses, including attorneys' fees, Tenants' fees,
and experts' fees which arise from or in connection with the presence or suspected presence of
Hazardous Substances on, in, under or about the Property ( "Claims ").
(The balance of Section 35.2 shall remain unchanged.)
9. Security. Tenant acknowledges that the Property is adjacent to a water
plant/reservoir facility and that security and other concerns relating to that use may require
restrictions on Tenant's activities. Tenant and all of its officers, employees, agents and
volunteers who enter onto the Property shall comply with any and all security measures specified
by Landlord to ensure the security of the Property and adjoining properties.
S7296.0001.742162 -2 -5-
•
10. Easements. Section 3 is amended by replacing the very last sentence of the
section with the following:
Tenant, subject to Landlord's right of reasonable approval, shall have the right, at
Tenant's sole cost and expense, to relocate the Easements provided herein, so long as such
relocation will not adversely affect the use of the Property by Landlord, the public, or any other
party having a legal claim to the Property.
11. Memorandum of Lease. Either party will, at any time upon fifteen (15) days
prior written notice from the other, execute, acknowledge and deliver to the other a recordable
First Amendment to Memorandum of Lease substantially in the form of the Attachment 1.
Either party may record this memorandum at any time, in its absolute discretion.
12. Other Terms and Conditions Remain. In the event of any inconsistencies
between the Lease and this Amendment, the terms of this Amendment shall control. Except as
expressly set forth in this Amendment, the Lease otherwise is unmodified, remains in full force
and effect and is incorporated and restated herein as if fully set forth at length. Each reference in
the Lease to itself shall be deemed also to refer to this Amendment.
13. Capitalized Terms. All capitalized terms used herein shall have the same
meanings as defined in the Lease.
IN WITNESS WHEREOF, the parties have caused their properly authorized
representatives to execute and seal this Amendment on the dates set forth below.
LANDLORD:
The City of Seal Beach, a municipal corporation
By:
Name:
Title:
Date:
TENANT:
AB CELLULAR LA, LLC, a Delaware
limited liability company dba AT &T
Wireless
By: L1N Cellular Communications Corporation, a
California corporation, its Member
By:
Name:
Title:
Date:
S7296.0001.742162 -2 -6-
STATE OF )
)ss:
COUNTYOF )
On the day of , 2003 before me personally appeared
and acknowledged under oath that he is the
of of
, the named in the attached
instrument, and as such was authorized to execute this instrument on behalf of the
Notary Public:
My Commission Expires:
CORPORATE ACKNOWLEDGMENT
STATE OF )
)
COUNTY OF )
I CERTIFY that on , 2003,
[name of representative] personally came before me
and acknowledged under oath that he or she:
(a) is the [title] of
[name of corporation], the corporation named in the
attached instrument,
(b) was authorized to execute this instrument on behalf of the corporation and
(c) executed the instrument as the act of the corporation.
Notary Public
My Commission Expires:
S7296 0001 742162 -2 -7-
ATTACHMENT 1
FIRST AMENDMENT TO MEMORANDUM OF LEASE
Prepared by:
Terry A. Jones
1122 E. Lincoln Ave. #206
Orange, CA 92865
714 974 -7844
Return to:
AT &T Wireless
Attn: Lease Administration
Re: AWS Cell Site # 453.1; Cell Site Name: City of Seal Beach
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Cell Site No.: C453
State: California
County: Los Angeles
FIRST AMENDMENT TO MEMORANDUM OF LEASE
This First Amendment to Memorandum of Lease is entered into on this day of
2003, by and between The City of Seal Beach, a municipal
corporation, with an office at 211 8 St., Seal Beach, California 90702
(hereinafter referred to as "Landlord ") and AB CELLULAR LA, LLC, a
Delaware limited liability company d/b /a AT &T Wireless (formerly known as
LOS ANGELES CELLULAR TELEPHONE COMPANY, a California general
partnership), having an office at 2729 Prospect Park Drive, Rancho Cordova, CA
95670 (hereinafter referred to as "Tenant ").
1. Landlord and Tenant entered into a certain Ground Lease ( "Lease ") on the 23rd
day of August, 1993, as amended by that certain First Amendment to Ground
Lease for the purpose of installing, operating and maintaining a communications
facility and other improvements. A Memorandum of Lease reflecting the
Agreement was recorded as instrument number 94- 0001500, in the public records
of Los Angeles County, State of California on January 3, 1994.
2. In addition to the Extension Terms presently set forth in the Lease, the Lease is
hereby renewed for one (1) additional period of five (5) years each upon the same
terms and conditions of the Lease, as modified by the First Amendment to Ground
Lease Agreement. In addition, Landlord hereby grants to Tenant an option to
extend the Term for two (2) additional periods of five (5) years each on the same
terms and conditions of the Lease, as modified by the First Amendment to Ground
S7296 0001 742162 -2 A -1
Lease Agreement. Tenant may exercise this option by notifying Landlord in
writing of Tenant's intention to renew the Lease at least sixty (60) days prior to
the expiration of the term.
3. The Lease shall be binding upon and inure to the benefit of the parties and their
respective heirs, successors, and assigns, subject to the provisions of the
Agreement.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Memorandum of Lease as of the day and year first above written.
WITNESSES: "LANDLORD"
The City of Seal Beach, a municipal
Print Name corporation
By:
Print Name: Print Name:
Its:
Date:
"TENANT"
AB CELLULAR LA, LLC, a Delaware
Print Name: limited liability company dba AT &T
Wireless
By:
Print Name: Print Name:
Its:
Date:
S7296 0001.742162 -2 A -2
TENANT ACKNOWLEDGMENT
STATE OF )
)ss:
COUNTY OF )
On the day of , 2003, before me personally appeared
, and acknowledged under oath that he is the
of
the named in the attached instrument, and as such was
authorized to execute this instrument on behalf of the
Notary Public:
My Commission Expires:
LANDLORD ACKNOWLEDGMENT
CORPORATE ACKNOWLEDGMENT
STATE OF )
) ss:
COUNTY OF
I CERTIFY that on , 2003,
[name of representative] personally came before me and
acknowledged under oath that he or she:
(a) is the [title] of
[name of corporation], the corporation named in the
attached instrument,
(b) was authorized to execute this instrument on behalf of the corporation and
(c) executed the instrument as the act of the corporation.
Notary Public:
My Commission Expires:
S7296.0001.742162 -2 A -3
GROUND LEASE
[Building and Antennae to be Constructed]
THIS GROUND LEASE ( "Lease ") is dated for reference
purposes only this 23rd day of August,1993 by and between the
City of Seal Beach, California, a municipal corporation
( "Landlord "), and Los Angeles Cellular Telephone Company, a
California general partnership - ( - ""Tenant " - ) - -- - - -- - -
WHEREAS, Landlord is the owner of certain real property
in the City of Seal Beach, County of Los Angeles, State of
California, commonly known as 3131 Beverly Manor Road, Seal
Beach, at the rear of fire station 48, and more particularly
described in Exhibit "A" attached hereto and made a part hereof
(the "Property ").
WHEREAS, Tenant desires to lease from Landlord and
Landlord desires to lease to Tenant that portion of the Property
shown as cross - hatched on the plot plan of the Property attached
as Exhibit "B" hereto and made a part hereof showing in addition
a description of Tenant's "Easements," as defined below,
(collectively, the "Premises ").
WHEREAS, Tenant requires certain easements in order to
make the Premises suitable for Tenant's use and Landlord desires
to grant to Tenant, as part of the Premises, the Easements
described in Paragraph 3, hereinbelow.
NOW, THEREFORE, Landlord hereby leases the Premises and
grants the Easements to Tenant on the terms and conditions
hereinafter set forth.
1. Term and Commencement. This Lease shall be for an Initial
Term commencing on September 1, 1993 ( "Term Commencement Date "),
and ending five (5) years thereafter ( "Initial Term ").
Notwithstanding the foregoing, it is understood and agreed
between the parties that Tenant's use of the Premises is
contingent upon Tenant obtaining all necessary governmental
approvals and permits to allow it to construct and operate the
"Communications Facility," as such term is defined in Paragraph 7
hereinbelow, on the Premises. The period of time from the Term
Commencement Date to the date on which Tenant has obtained all
necessary governmental approvals and permits and has provided
Landlord written notice of the commencement of construction of
its Communications Facility, as provided below, shall be called
the "Permit Phase." In no event shall the Permit Phase extend
beyond 60 days after Term Commencement. The period of time from
the date of the written notice by Tenant to Landlord of the
commencement of construction of the Communications Facility to
he expiration of the Initial Term of this Lease, as same may be
1 " / extended, as provided below, shall be called the "Operational
Phase." l
MUM
MMWT
� iANpLOR
2. Additional Terms and Renewals. Landlord hereby grants to
Tenant a single option to extend the Initial Term for one (1)
additional period ( "Option Term "), of five (5) years on the same
terms and conditions set forth in this Lease for the Initial
Term, except that the monthly rent for the Option Term shall be
determined as provided in Section 5 of this Lease. Such option
shall be automatically exercised by Tenant unless Tenant gives
Landlord written notice at least three (3) months before the
expiration of the Initial Term of Tenant's desire to terminate
this Lease, otherwise, upon such automatic extension, such Option
Term shall become part of the Initial Term. The Initial Term and
any Option Term shall be referred to herein individually and
collectively as the "Term" of this Lease. The Landlord and
Tenant may, but are not required to, agree to extend this Lease,
after the Initial and Option Terms, upon such terms and
conditions as may be mutually, agreeable. Any reference herein to
"Additional Terms" shall refer to such additional terms as may be
agreed upon by the parties hereto.
3. Easements. Landlord hereby grants to Tenant as easements
appurtenant to the Premises the following easements: (i) a
nonexclusive, perpetual easement for vehicular and pedestrian
ingress and egress to and from the Premises twenty -four (24)
hours a day, seven (7) days a week as shown and marked "Access
Easement" on Exhibit "B" attached hereto, (ii) a non - exclusive,
perpetual easement for the installation and /or use of sub - surface
utility lines, including, without limitation, electrical, water,
gas, telephone, power, drains and /or sewer pipes located or to be
located under, across and through those portions of the Property
as shown and marked "Sub- Surface Utility Easement" on Exhibit "B"
attached hereto, and (iii) access to unassigned parking space(s)
as shown and marked "Non- Assigned Parking Space(s)" on
Exhibit "B" attached hereto (individually and collectively, the
"Easements "). The Easements shall include placement•and traffic
of such trucks, vehicles and heavy or other construction or
repair machinery on the Property.from time to time as may be
necessary or appropriate for the construction, installation,
operation, maintenance, replacement and /or removal of the
Communications Facility. Tenant shall promptly repair upon
written notice by Landlord to Tenant all damage to the Property,
if any, directly caused by Tenant's construction or use of the
Easements to the condition that existed immediately prior to such
damage; provided, however, that Tenant shall not be liable to
Landlord or any such other person or entity entitled to use the
Property on which the Easements are located for any consequential
damages, including economic loss, attributable to such use,
damage or repairs. To the extent that the Easements and
improvements thereon are constructed or used by Tenant
exclusively, and except for such maintenance necessitated by the
use or negligent misuse of the Easements by Landlord and /or
Landlord's assigns, independent contractors, agents and /or
invitees, Tenant shall maintain during the Term of this Lease the
Easements and all improvements thereon in good condition and
repair, free and clear of any obstructions and other hazards to
persons entitled to use the Easements. In connection with the
foregoing and for the of either (i) obtaining the
necessary governmental permits and approvals for the ,
INITIAL 0/
LANDLORD ,
----T
TENANT
construction, operation and /or maintenance of the Communications
Facility or (ii) serving the Premises with any necessary or
appropriate utilities in connection with the installation,
construction, operation and /or maintenance of the Communications
Facility, Landlord shall upon Tenant's request enter into
agreements or shall hereby authorize Tenant to enter into -
agreements with and grant easements (in the locations of the
Easements shown on-Exhibit "B ") to any public authority and /or
public utility which are necessary or appropriate for Tenant's
use of the Premises for installation, construction, operation,
and /or maintenance of its Communications Facility as provided
herein. In addition, notwithstanding anything to the contrary
contained in this Lease, Tenant shall have the absolute right to
assign its rights to the Easements, in whole or in part, without
the consent of Landlord to any third party, including, without
limitation, to Tenant's contractor(s), as necessary or
appropriate to facilitate Tenant's use and enjoyment of the
Premises. Except as otherwise designated on Exhibit "B," the
term of any easement or other interest granted hereunder shall be
perpetual. Landlord shall promptly execute, acknowledge and
deliver to Tenant within five (5) business days after request
therefor by Tenant all documents, agreements or instruments which
are reasonably necessary or appropriate to effectuate the
purposes described in this Paragraph 3. The Easements shall be
part of the Premises so long as this Lease is in full force and
effect and Premises, as that term is used in this Lease, shall
include by definition the Easements. Tenant, subject to
Landlord's right of reasonable approval, shall have the right, at
tenant's sole cost and expense to relocate the Easements provided
herein so long as such relocation will not adversely affect the
Landlord's or the public's use of the Property.
4. Permit Phase Termination. Landlord understands and agrees
that Tenant's ability to use the Premises is contingent -on the
Premises and the Easements being suitable for Tenant's intended
use from both an economic and technical engineering basis, and on
Tenant's ability to obtain and maintain all required governmental
permits and approvals. In the event that during the Permit Phase
Tenant, in its sole discretion, determines that the Premises
and /or the Easements are or have become unsuitable and /or any
required governmental permits or approvals cannot be obtained or
maintained and /or the cost or effort required to obtain and /or
maintain such governmental permits and approvals is or has
become, in Tenant's judgment, economically impractical, then
Tenant shall have the right to terminate this Lease upon written
notice to Landlord not less than ten (10) days'prior to the end
of the Permit Phase.
5. Rent.
(a) Initial Monthly Rent. Concurrently with the
execution of this Lease, Tenant shall pay to Landlord the sum of
Two Thousand Dollars ($2,000.00) as payment in advance for two
(2) months Rent during the Permit Phase of this Lease. In the
event of termination by Tenant during the permit phase, all sums
theretofore paid by Tenant to Landlord as Rent during the Permit
Phase shall remain the property of Landlord. Tenant shall give
LANDLORD �„`..
TENANT
Landlord written notice upon commencement of construction of the
Communications Facility on the Premises, and the date of said
notification shall become the commencement date of the
Operational Phase of this Lease ( "Operational Phase Commencement
Date "). A copy of such written notification shall be attached
hereto for future reference regarding the anniversary date of the
commencement of payment of Operational Phase Rent. Beginning
with the first day of the first rental month following the
Operational Phase Commencement Date, Tenant shall pay to Landlord
monthly Rent in the sum of One Thousand Dollars ($1,000.00) per
month in advance on the first day of each and every month during
the Term as such amount may be increased or decreased as
hereinafter provided.
(b) Periodic Adjustment. - The monthly rent described in
section 5(a) shall be adjusted at the commencement of the second
year of the Term and every year thereafter ( "the Adjustment
Date ") as follows:
The base for computing the adjustment is the
Consumer Price Index for All Urban Consumers for the Los
Angeles- Anaheim- Riverside Metropolitan Area published by the
United States Department of Labor, Bureau of Labor Statistics
( "Index "), which is published for the second calendar month
preceding the date of the commencement of the Term ( "Beginning
Index "). If the Index published for the second calendar month
preceding the Adjustment Date ( "Extension Index ") has increased
over the Beginning Index, the monthly rent for the period until
the next Adjustment Date shall be set by multiplying the monthly
rent stated in section 5(a) by a fraction, the numerator of which
is the Extension Index and the denominator of which is the
Beginning Index. In no case shall the monthly rent be less than
the initial monthly rent stated in section 5(a), nor shall the
increase in monthly rent exceed 8M in any year.
If the Index is changed so that the base year
differs from that used for the Beginning Index, the Index shall
be converted in accordance with the conversion factor published
by the United States Department of Labor, Bureau of Labor
Statistics. 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.
(c) Monthly Rent During Extended Term. The monthly
rent for the Option Term shall be determined in the following
manner:
The Consumer Price Index for All Urban Consumers
for the Los Angeles- Anaheim- Riverside Metropolitan Area,
published by the United States Department of Labor, Bureau of
Labor Statistics ( "Index "), which is published for the second
calendar month preceding the date of the commencement of the
Option Term ( "Option Index "), shall be compared with the Index
published for the second calendar month preceding the month in
which the Term commences ( "Beginning Index ").
LANDL=
TENANT
If the Option Index has increased over the
Beginning Index, the monthly rent payable during the Option Term
shall be set by multiplying the monthly rent stated in 5(a) by a
fraction, the numerator of which is the Option Index and the
denominator of which is the Beginning Index. As soon as the
monthly rent for the Extended Term is determined Landlord shall
give Tenant notice of the amount of monthly rent for the Option
Term.'
If the Index is changed so that the base year
differs from that used as of the month immediately preceding the
month in which the Term commences, the Index shall be converted
in accordance with the conversion factor published by the United
States Department of Labor, Bureau of Labor Statistics. 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.
6. Use. Tenant shall have the right to use the Premises for
the purpose of constructing, maintaining and operating its
Communications Facility as such may be expanded or•modified as
provided herein and for any other lawful purpose approved by
Landlord.
7. Construction and Alterations. Tenant shall have the right
to construct and install on the its communications
facility with such specifications as Tenant shall determine,
initially to consist of one building with communications
equipment and one monopole with antennae array and all necessary
appurtenances, support equipment and such other equipment, cables
and /or conduits as may be appropriate for Tenant's business use
of the Property ( "Communications Facility "). The Communications
Facility shall be constructed of materials and shall be painted a
color consistent with existing improvements on the property.
Tenant shall submit all plans, drawings, proposed materials and
color scheme to the Department of Development Services for
approval prior to construction. Tenant shall construct, at
Tenant's sole expense, a six -feet (6') high wrought iron fence,
gate and return surrounding the Premises as indicated in Exhibit
"B ", attached hereto. Tenant shall construct, at Tenant's sole
expense a six -inch (6 ") high curb around the existing landscaped
planter on the property. Subject to the obtaining of all
necessary governmental approvals, Tenant shall not interfere in
any way with radio or other equipment which Landlord or any other
user may have on or in the Property at the time Tenant's
equipment is installed. The Communications Facility installed by
Tenant, including, without limitation, the building, monopole,
antennae array, communications equipment and the support
equipment located on the Premises, including the support
equipment located on the Easements, shall at all times be the
sole property of Tenant. Neither Landlord's execution of this
Lease nor any consent or approval given by Landlord hereunder in,
its capacity as landlord shall waive, abridge, impair or
otherwise affect Landlord's powers and duties as a governmental
body. Any requirements under this Lease that Tenant obtain
consents or approval of Landlord are in addition to and not in
umum
TEIVAN T �`�
lieu of any requirements of Law that Tenant obtain approvals or
permits. However, Landlord shall attempt to coordinate its
procedures for giving contractual and governmental approvals so
that Tenant's requests and applications are not unreasonably
denied or delayed.
8. Cooperation; Indemnity. Landlord shall fully cooperate with
Tenant by executing and joining in applications for governmental
permits or approvals covering Tenant's use, construction and /or
occupation of•the Premises, including the Easements, provided
that Tenant shall reimburse Landlord for any and all reasonable
expenses attributable to said cooperation which are approved in
advance by Tenant in writing. Tenant shall keep the Property and
the Premises free from mechanics' liens arising out of Tenant's
construction. Tenant shall indemnify and hold Landlord harmless
from any claim, demand or cause of action which may arise from
Tenant's negligent act or omission or willful misconduct in the
construction, installation, operation or maintenance of its
Communications Facility, except for any occurrence attributable,
in whole or in part, to Landlord and /or its assigns, tenants,
agents, employees, customers, invitees or contractors.
9. Quiet Enjoyment and Landlord's Non - Interference. Landlord
and Tenant agree that the present use of the property surrounding
the premises does not constitute an interference Tenant's
proposed use. So long as Landlord utilizes the surrounding
property for purposes consistent with or similar to existing
uses, Tenant shall make no claim that such use interferes with
Tenant's use of the Premises as a Communications facility.
10. Utilities and Taxes. Tenant shall pay all utilities to the
extent required for Tenant's use of the Premises. Landlord and
Tenant shall reasonably cooperate to provide for a separate
metering of said utilities. Tenant shall pay directly to any
taxing entity, any increase in taxes or assessments based solely
on the assessed value of any improvements constructed by Tenant
on the Premises for operation of its Communications Facility,
provided that Tenant shall have the right to protest and contest
any such taxes or assessments with the appropriate governmental
authority. Tenant shall pay all personal property taxes arising
from its possessory interest in equipment located on the
Premises.
11. Removal of Property. Tenant shall remove, within a
reasonable period of time (not to exceed sixty (60) days)
following the expiration of the Term hereof, such personal
property, equipment, trade fixture(s) and improvement(s) as are
specifically designated as required to be removed by Tenant, if
any, on Exhibit " B" attached hereto. If any such personal
property, equipment, trade fixtures, and improvements are not
specifically designated as required to be removed by Tenant on
Exhibit " B," then Tenant shall have the right, but not the
obligation, to remove such items within a reasonable period of
time (not to exceed sixty (60) days) following the expiration or
earlier termination of the Term hereof. Any personal property,
equipment, trade fixtures and improvements which are not removed
by Tenant within sixty (60) days after the expiration or earlier
LANDLORD
termination of this Lease shall, upon the expiration of said
sixty (60) day period, become the property of Landlord (subject,
however, to any interest therein or rights thereto of any third
parties in accordance with Paragraph 29 of this Lease) and Tenant
shall thereafter have no rights, obligations or liabilities
whatsoever with respect thereto.
12. Title Matters.
(a) Title. Landlord represents and warrants that it has
full authority to enter into this Lease and to grant the
Easements and that Landlord has fee title to the Property and the
Premises.
(b) Memorandum of Lease. Concurrently with the execution
of this Lease, Landlord and Tenant shall execute and have
acknowledged the Memorandum of Lease in the form attached hereto
as Exhibit "D" and made a part hereof ( "Memorandum of Lease "),
which Memorandum of Lease may be recorded by Tenant concurrently
with or after the execution of this Lease. Tenant shall bear the
cost of recording all documents required to be recorded under
this Lease.
13. Assignment. Tenant may assign this Lease or sublet the
Premises or any part thereof (including the Easements) only upon
the review and written consent of Landlord, which consent shall
not be unreasonably withheld, provided each such sublease or
assignment is expressly made subject to the provisions of this
Lease. However, notwithstanding any such subletting or
assignment, Tenant shall remain primarily liable for the
performance of all terms and conditions of this Lease unless
expressly released by Landlord in writing.
14. Insurance. Throughout the Term, Tenant shall maintain
insurance against public liability for injury to persons
(including death) or damage to property occurring within, upon or
about the Premises or Property. Such insurance policy shall be a
combined single limit-policy in an amount not less than one
million dollars ($1,000,000) per occurrence and Landlord shall be
named as an additional insured under the policy. Said insurance
may be in the form of general- coverage or floating policies
covering these and other premises. If at the commencement of the
Option Term, if any, in the opinion of the insurance broker or
consultant retained by City, the amount of public liability and
property damage insurance coverage maintained by Tenant at that
time is not adequate, Tenant shall increase the insurance
coverage as required by City's insurance broker or consultant.
, 15. Damage or Destruction /Eminent Domain. If the whole or any
part of the Communications Facility or the Premises, including
the Easements, are damaged or destroyed by fire, the elements,
subsidence of sublateral or subjacent support or any other
casualty (all of which are herein called "damage "), or taken, in,
whole or in part, by eminent domain or condemnation or sold under
the threat of the exercise of said power (all of which are herein
called "condemnation ") which damage or condemnation makes the
Premises unsuitable or uneconomic for Tenant's use, Tenant may
LANDLDRD.
M NT
terminate this Lease and all of the obligations of either party
hereunder upon written notice to Landlord provided that such
notice is given by Tenant to Landlord within thirty (30) days of,
the latter to occur of (i) the date of such damage or
condemnation or (ii) Tenant's determination that continued use of
the Premises is unsuitable or uneconomic. If, in the event of a
condemnation, Tenant does not so elect to terminate, this Lease
shall continue in effect and the Rent payable by Tenant shall be
reduced by an amount which reflects the value to Tenant of the
portion of the Premises conveyed or taken in connection with such
condemnation compared to the total value of the Premises
immediately before the condemnation. Further, regardless of
whether this Lease is terminated as provided in this paragraph,
Tenant shall in the event of a condemnation be entitled to
receive just compensation from the condemning authority or
transferee for loss of all or any portion of the Premises, this
Lease and /or the Communications Facility, or any use thereof,
including, without limitation, the value of any personal property
and /or trade fixtures taken, the cost of relocating the
Communications Facility or any portion thereof and /or any loss of
business.
16. Tenant's Default. If Tenant fails to make any payment of
Rent herein provided when due, Landlord shall forward written
notice of such failure to Tenant, as provided in Paragraph 30
hereinbelow, and the failure of Tenant to cure within fifteen
(15) days after Tenant's receipt of said notice shall be an
"Event of Default" under this Lease and Landlord may thereafter
pursue any and all remedies available to it under law. If Tenant
fails to perform any of the terms or provisions of this Lease
other than the payment of Rent, and if Landlord gives Tenant
written notice, as provided herein, of such failure and if Tenant
does not cure such failure to perform within thirty (30) days
after Tenant's receipt of said notice, or, if the failure to
perform is of such a character as to require more than thirty
(30) days to cure and Tenant does not use reasonable diligence in
commencing a cure of such failure during said period, such
failure shall be deemed an "Event of Default" of Tenant's
obligations under this Lease and Landlord may thereafter pursue
any and all remedies available to it under law. Tenant shall not
be in default under this Lease unless and until an "Event of
Default," as defined in this paragraph, occurred.
17. Landlord's Default. If Landlord defaults on any of its
obligations contained in this Lease, Tenant shall have the right
to deliver written notice of such default to Landlord, as
provided in Paragraph 30 hereinbelow, and failure of Landlord to
cure such default within thirty (30) days or any such lesser
period as may be expressly provided herein shall be a default
under this Lease and Tenant may thereafter pursue any and all
remedies available to it under law, including, without
limitation, the right, but not the obligation, to cure said
default and submit a written statement of costs incurred for
curing said default to Landlord. In such event, Landlord shall
have thirty (30) days following receipt of such written statement
to reimburse Tenant for costs incurred. The foregoing shall in
MMAL4getliii
LANDLORD j'
TENANT
no way limit Tenant's right to seek equitable relief without
notice to Landlord.
18. Non - Disturbance and Attornment. So long as this Lease is in
full force and effect and there is no uncured Event of Default
with respect to Tenant's obligations hereunder, no ground lease,
mortgage, deed of trust or other interest to which this Lease
and/ or Tenant's rights are or may become subordinate
(hereinafter collectively "Senior Interest "), and no action or
proceeding under and /or termination of any such Senior Interest,
shall affect in any manner whatsoever (i) Tenant's rights under
this Lease, (ii) Tenant's use, possession or enjoyment of the
Premises, including the Easements or (iii) the leasehold estate
granted by this Lease.
19. Estoppel Certificate. From time to time upon not less than
twenty (20) days prior written notice by either party, the other
party shall execute, acknowledge and deliver to the requesting
party a statement it writing certifying that, this Lease
(together with any Non - Disturbance and Attornment Agreement) is
'unmodified and in full force and effect (or if modified,
describing such modification(s)) and that the requesting party is
not in default, except as specified in such statement, in regard
to any of its obligations under this Lease and further setting
forth the Rent then payable hereunder, the dates to which Rent
has been paid in advance, if any, and such other statements
relating to delivery and acceptance of the Premises as the
requesting party's lender, purchaser, assignee or sublessee may
require. Said statement shall be accurate and binding on the
party executing same and may be relied upon by any such person as
hereinabove described at whose insistence the estoppel was
prepared and /or delivered.
20. Obligations and Rights Run with the Land. The Easements,
and each and all of the obligations, rights, restrictions, liens
and charges set forth in this Lease run with the land comprising
Tenant's estate and Landlord's estate and every portion thereof,
and are binding upon and inure to the benefit of the respective
successors (by operation of law or otherwise), assigns, tenants,
invitees and agents of the parties hereto and other lawful
occupants of Tenant's estate and Landlord's estate. The grant of
easements contained herein together with the rights and
obligations of the parties hereto, shall remain in full force and
effect and shall not be modified even upon the foreclosure of or
default under any Senior Interest.
21. Landlord's Covenant to Provide Notice. In addition to any
other obligation of Landlord to provide notice to Tenant provided
herein, Landlord shall deliver to Tenant, as provided in
Paragraph 30 hereinbelow, any and all notice(s) received by
Landlord which pertain to Tenant's use and enjoyment of the
Premises, including, without limitation, from any governmental
authority, lender, lien claimant or any other person or entity
claiming an interest in or right to the Premises. Landlord shall
deliver such notice(s) to Tenant promptly upon receipt of same by
Landlord.
1 MALS: � y�� - '
LAyDIAR
TENANT
22. Time of Essence. Time is of the essence of each and every
provision of this Lease.
23. Consent of Parties. Except as otherwise expressly provided
herein, whenever the consent or approval of either party is
required, that party shall not unreasonably withhold or delay
such consent or approval.
24. California Law. This Lease shall be construed and enforced
in accordance with the laws of the State of California.
25. Successors and Assigns. Each and all of the rights and
obligations of the parties under this Lease shall be binding upon
_ and shall inure to the benefit of the parties and their
respective heirs, successors and assigns.
26. Severability. The invalidity of any portion of this Lease
shall not affect the remainder of this Lease.
27. Attorneys' Fees. In the event that any action shall be
instituted by either of the parties hereto for the enforcement of
any of its rights or remedies in and under this Lease, the
prevailing party shall be entitled to recover from the other
party all costs incurred by said prevailing party in said action,
including reasonable attorneys' to the extent fixed by the
Court therein.
28. Additional Agreements. From and after the date of this
Lease, each of the parties hereto shall promptly execute,
acknowledge and deliver, or cause to be executed, acknowledged
and delivered, all such instruments or documents and to take all
actions pursuant to the provisions hereof as may reasonably be
requested by any party to carry out the intent or purpose of this
Lease.
29. Tenant's Premises, Equipment Financing and Leasehold
Assignment. Landlord acknowledges that Tenant's use of the
Premises includes proprietary trade secrets. Accordingly,
Landlord shall have no right whatsoever to enter any structure on
the Premises without Tenant's prior written consent which Tenant
may withhold in its sole and absolute discretion, or to provide
emergency services. Landlord hereby expressly understands and
agrees that, at all times during the Term, Tenant shall have the
absolute and unconditional right from time to time to grant to
any person or entity a security interest (including, without
limitation, a security interest of first lien priority) in some
or all of the Communications Facility and /or any of Tenant's
furniture, fixtures, equipment and /or other property utilized or
to be utilized in connection therewith ( "Equipment Financing ")
and /or to assign or pledge Tenant's interest in this Lease and
the Premises, including the Easements, to any person or entity
for purposes of financing its equipment or for the operation of
its business ( "Leasehold Assignment "), and to record against • •
Tenant's interest in the Premises any instruments or documents as
may be required with respect to such Equipment Financing or
Leasehold Assignment. Landlord hereby waives any and all rights
or interest which Landlord may have or acquire to or in t - //
MUM
TENANT
Communications Facility and /or any of Tenant's furniture,
fixtures, equipment and /or other property utilized or to be
utilized in connection therewith and hereby agrees that same will
not constitute realty regardless of the law of fixtures and /or
the manner in which same are affixed to or placed on the Premises
or otherwise. Accordingly, Landlord shall not grant, create or
purport to grant or create any security interest whatsoever in
the Communications Facility and /or any of Tenant's furniture,
fixtures, equipment and /or other property utilized or to be
utilized in connection therewith. Landlord hereby expressly
understands and agrees to promptly execute, acknowledge and
deliver to Tenant, upon request by Tenant, all such instruments
and documents as are reasonably requested by Tenant, in order for
Tenant to consummate the transactions contemplated by this
Paragraph 29.
30. Notices. Any notice, request, information or other document
to be given hereunder to any of the parties by any other parties
shall be in writing and shall be deemed given and served upon
delivery if delivered personally, or three (3) days after mailing
if sent by certified mail, postage prepaid, as follows:
If to Tenant, legal notices should be addressed to:
Los Angeles Cellular Telephone Company
17785 Center Court Drive, North
Cerritos, California 90701 -4574
Attention: Erich Everbach, Vice President and General
Counsel
Other Notices to Tenant should be addressed to:
Los Angeles Cellular Telephone Company
P.O. Box 6028
Cerritos, California 90702 -6028
Attention: Real Estate Department
If to Landlord, addressed to:
City of Seal Beach
211 8th Street
Seal Beach, California 90740
Attention: City Manager
Any party may change the address or persons to which notices are
to be sent to it by giving the written notice of such change of
address or persons to the other parties the manner herein
provided for giving notice.
31. Operational Phase Termination. Except as to any right or
event of termination specifically provided hereunder, Tenant
shall not have the right to terminate this Lease at any time.
during the Operational Phase. During the Option Term or
Additional Terms, if any, Tenant may terminate this Lease only
upon thirty (30) days prior written notice to Landlord, provided
that Tenant shall concurrently with the giving of such notice of
INrnA L
uANDioR °
TENA IT
termination pay Landlord an amount equal to six (6) months Rent,
as such Rent shall be determined pursuant to Paragraph 5,
hereinabove.
32. Compliance with Laws. Landlord and Tenant shall comply in
all respects with all applicable building codes, regulations and
ordinances affecting the Property.
33. Entire Agreement. This Lease along with all exhibits and
attachments or other documents affixed hereto or referred to
herein as part of the agreement between the parties (including,
without limitation, the Memorandum of Lease) constitutes the
entire and exclusive agreement between Landlord and Tenant
relative to the Premises, including the Easements, herein
described and "Lease" as such term is used herein shall include
by definition all such exhibits, attachments and other documents.
All prior or contemporaneous oral agreements, understandings
and /or discussions relative to the leasing of the Premises,
including the Easements, are merged in or revoked by this Lease.
This Lease and said exhibits, attachments and other documents may
be altered, amended or revoked only by instrument in writing
signed by both Landlord and Tenant.
34. Landlord's Authority to Execute Lease. Landlord represents
and warrants that this Lease and the execution hereof does not
and will not conflict with or violate the laws of the State of
California, the Charter of the City of Seal Beach, or any other
document or agreement to which Landlord is a party or by which it
or its assets are bound. Further, Landlord and each individual
executing this Lease on behalf of Landlord represent and warrant
that he /she is duly authorized to execute and deliver this Lease
on behalf of Landlord and that this Lease is binding upon
Landlord and enforceable against Landlord in accordance with its
terms. Landlord shall, at its sole cost and expense,
concurrently with its execution of this (and at other times
at Tenant's request), deliver to Tenant, without limitation, such
resolutions, certificates, approvals, letter of conservatorship,
Court orders and written assurances as Tenant may request
authorizing and approving the execution of this Lease.
35. Environmental Matters.
35.1 Landlord's Warranties and Representations. Landlord
represents and warrants that, to Landlord's actual present
knowledge, (without any duty to make inquiry or to conduct
investigations), except as follows:
NONE
that (i) there have been no leaks, spills, releases, discharges,
emissions, installation, or disposal of hazardous or toxic
wastes, materials or substances (as such substances are regulated
or may be regulated by any applicable local, state or federal
laws or regulations) ( "Hazardous Substances "), occurring on 'or
affecting the Property or the improvements located thereon, if
any, and (ii) the soil, ground water, or improvements, if any,
on, in, under or about the Property is /are free of any Hazardous
LANDLORD
TENANT
Substances. The term "Hazardous Substance" as used in this Lease
shall not include small quantities of household or office supply
materials maintained in commercial containers and used in the
ordinary course of business.
35.2 Mutual Indemnification. Except to the extent that
such Hazardous Substances are introduced into the Property as a
result of Tenant's conduct, Landlord agrees to indemnify, defend
(with counsel selected by Tenant and satisfactory to Landlord)
and hold Tenant harmless from any claims, judgements, damages,
penalties, fines, costs, liabilities (including sums paid in
settlements of claims) or losses, including attorneys' fees,
consultants' fees, and experts' fees which arise from or in
connection with the presence or suspected presence of Hazardous
Substances on, in, under or about the Property ( "Claims ").
Tenant agrees to indemnify, defend (with counsel selected by
Landlord and satisfactory to Tenant) and hold Landlord harmless
from any and all claims arising from the presence of Hazardous
Substances on, in, under or about the Property the presence of
which were a result of Tenant's conduct. Without limiting the
generality of the foregoing, this indemnification obligation of
Tenant and Landlord shall specifically cover costs incurred in
connection with any investigation of site conditions or any
clean -up, remedial, removal, or restoration work required by any
federal, state or local government agency or political
subdivision, or by any third party resulting from the presence or
the suspected presence of Hazardous Substances in, on, under or
about the Property. Landlord's and Tenant's indemnification
obligations shall survive the expiration or earlier termination
of this Lease.
35.3 Presence of Hazardous Substances.
(a) Throughout the term of this Lease, Landlord' and Tenant
shall immediately notify the other of the presence of or the
release of a Hazardous Substances on, in, under or about the
Property.
(b) Notwithstanding the terms of this Lease to the
contrary, if Landlord has entered the Premises in connection with
the presence or remediation of Hazardous Substances, whether or
not Landlord has provided Tenant with prior written notice of
such entry, Landlord shall thereafter immediately notify Tenant
of such entry and the purpose of and actions taken by Landlord in
connection with such entry.
(c) Due to the sensitive nature of the equipment maintained
by Tenant at the Premises, if Hazardous Substances are present
on, in, under or about the Premises or the Property (which
presence was not caused or necessitated as a result of Tenant's
conduct) and the presence hereon adversely affects the operation
of Tenant's equipment, then Tenant shall have such rights as are
provided elsewhere in this Lease for total damage to or
destruction of the Premises or the Property.
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED
THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY
iNi WO' _ - -
TRANIT
EXECUTION OF THIS LEASE, DEMONSTRATE THEIR INFORMED AND VOLUNTARY
CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND
TENANT WITH RESPECT TO THE PREMISES.
ATTACHED EXHIBITS
Exhibit "A" Legal Description of Property
Exhibit "B" Plot Plan (Diagram of Property
and Premises, including the Easements)
Exhibit "C" Permitted Title Exceptions
Exhibit "D" Memorandum of Lease
IN WITNESS WHEREOF, the parties have executed this Lease on
the date first above written.
LANDLORD: TENANT:
THE CITY OF LOS ANGELES CELLULAR TELEPHONE COMPANY,
SEAL BEACH a California general partnership
a munici al corporation
By: 1..44 / By : " - rr ankston Mike Heil
Its:City Manager
Its:President and General Manager
APPROVED AS TO FORM:
By: ci-'1 6
Quinn M. Barrow
Its: City Attorney
EXHIBIT A
LEGAL DESCRIPTION
LA CELLULAR GROUND LEASE
All that certain land situated in the State of California, County of Orange, City of Seal Beach,
described as follows:
Parcel 1 and 2 of Parcel Map recorded in book 15, page 3 of Parcel Maps, in the office of the
County Recorder, County of Orange, California.
EXCEPTING therefrom all oil, gas, or other hydrocarbon products thereunder, provided that
the owners of such excepted products may not perform any operations on the surface of said
land, such as drilling, exploration or extraction of such minerals except in "Area A" described
in the Final Decree rendered October 6, 1948, in the District Court of the United States in and
for the Southern District of California, Central Division, Case No. 3436 - Civil, a certified copy
of which decree was recorded November 5, 1952 in book 2407 page 87 of Official Records.
TENANT
SEP 01 '93 14:53 053 p02
•
EXHIBIT PAGE 1 OF 5
•
EXHIBIT B EXHIBIT B
TITLE REPORT REFERENCE:
C,OMMONWEALTH LAND TITLE COMPANY
ORDER NO. 701755 —G
CIATE OF SURVEY: JULY 18, 1993
LEGAL DESCRIPTION:
PARCEL 1 AND PARCEL 2 OF A PARCEL MAP RECORDED IN BOOK 15, PAGE 3 OF
PARCEL MAPS, IN THE OFFICE OF COUNTY RECORDER. ORANGE COUNTY. CALIFORNIA.
' ASSESSOR'S PARCEL NO.: 095 -020-15
BENCH MARK:
ELEV. 38.574 FT. (1976)
1.1 M. N'LY ALONG SEAL BEACH BLVD. OVER S.D. FRWY. SET IN E. END OF N. ABUTMEN r
OF BRIDGE, 2' S. OF N. END OF BRIDGE, 1' +1— ABOVE ROAD. BM 1A 128 75
BASIS OF BEARING:
WESTERLY PROPERTY BOUNDARY TO BE N 01 25'19 "E., PER PARCEL MAP RECORDED
IN BOOK 15. PAGE 3 OF MAPS, ORANGE COUNTY, CALIFORNIA.
I • .
TOP OF MONOPOLE: ELEV. = 87.0'
TOP OF MICROWAVE DISH: ELEV. = 77.0'
TOP OF NEW EQUIPMENT SHELTER: ELEV. = 33.0'
FINISH GRADE: ELEV. = 12.0' _
NOTE: ALL ELEVATIONS ARE ABOVE MEAN SEA LEVEL
I .
•
LATITUDE & LONGITUDE:
LATITUDE: 33 46' 23" N
, LONGITUDE: 118 04' 33" W
AS PER LOS ALAMITOS, CALIFORNIA QUAD MAP N.A.D. 1927
•
CABLE RUNS: APX. 87 FT. +/-
CELL SITE *453.1
LANDLORD
3131 BEV�RLY MANOR ROAD 7K-
SEAL BE . CH, CA INTIALS TENANT
C. R. CARNEY
Architects, Inc.
PEI/. DATE DESCRIPTION BY
PAGE 2 OF 5
EXHIPIT B
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•
CELL SITE 4 4 53,1
3131 BEVERLY MANOR ROAD ' LANDLORD EA
SEAL BEACH, CA INITIALS TENAN
C. R. CARNEY
Architects, Inc.
REV. DATE DESCRIPTION BY .
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3131 BEVERLY MANOR ROAD LANDLORD EA
SEAL BEACH, CA INITIALS TENANT
• C. R. CARNEY
• Architects, Inc.
REV. DATE DESCRIPTION BY '
•
PAGE 4 OF 5
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CELL SITE #453.1
3131 BEVERLY MANOR ROAD LANDLORD
SEAL BEACH, CA INI TENAN
C.R. CARNEY
REV. DATE DESCRIPTION Architects, Inc.
BY •
PAGE 5 OF 5
EXHIBIT B
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3131 BEVERLY MANOR ROAD LANDLORD EA
SEAL BEACH, CA INITIALS TENANT
C. R. CARNEY
-
Architects, Inc.
REV. DATE DESCRIPTION BY •
Commonwealth Land Title Company
200 West Santa Ana Boulevard
Santa Ana, California 92701
(714) 835 -8511 TITLE DEPARTMENT FAX NO. (714) 835 -0513
Issuing Policies Of
Commonwealth®
Land Title Insurance Company
L A Cellular Yl.IIBIT C
17785 Center Ct. Dr. N.
Cerritos, California
Attn: Sharon Carrington
Your Ref: Site 453.1
Our No: 701755 -1 -G
Title Officer:
FRANK GIBFORD
PRELIMINARY REPORT
Dated as of August 3, 1993 at 7:30 A.M.
In response to the above referenced application for a policy of title insurance, Commonwealth Land
Title Company hereby reports that it is prepared to issue, or cause to be issued, as of the date
hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein
hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or
encumbrance not shown or referred to as an Exception below or not excluded from coverage
pursuant to the printed Schedules, Conditions and Stipulations of said policy forms.
The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in
Exhibit A attached. Copies of the Policy forms should be read. They are available from the office
- which issued this report.
This report (and any supplements or amendments hereto) is issued solely for the purpose of
facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is
desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or
Commitment should be requested.
CLTA Preliminary Report Form (Rev. 11/18/82)
701755 -1
Page 2
SCHEDULE A
The form of policy of title insurance contemplated by this report is:
Leasehold
The estate or interest in the land hereinafter described or referred to covered by this report is:
AFEE
Title to said estate or interest at the date hereof is vested in:
City of Seal Beach, a Municipal Corporation
The land referred to in this Report is situated in the State of California, County of Orange, and is
described as follows:
SEE EXFIIBIT "I" ATTACHED HERETO AND MADE A PART HEREOF
•
CLTA Preliminary Report Form (Rev. 11/18/82)
EXHIBIT "I"
All that certain land situated in the State of California, County of Orange, City of Seal Beach,
described as follows:
Parcel 1 and 2 of Parcel Map recorded in book 15, page 3 of Parcel Maps, in the office of the
County Recorder, County of Orange, California.
EXCEPTING therefrom all oil, gas, or other hydrocarbon products thereunder, provided that
the owners of such excepted products may not perform any operations on the surface of said
land, such as drilling, exploration or extraction of such minerals except in "Area A" described
in the Final Decree rendered October 6, 1948, in the District Court of the United States in and
for the Southern District of California, Central Division, Case No. 3436 - Civil, a certified copy
of which decree was recorded November 5, 1952 in book 2407 page 87 of Official Records.
•
701755 -1
Page 4
SCHEDULE B
At the date hereof Exceptions to coverage in addition to the printed exceptions and exclusions in said
policy form would be as follows:
A. General and special taxes, including any assessments collected with taxes, to be
levied for the fiscal year 1993 -1994, which are a lien not yet payable.
B. Assessor's Parcel No. 095 020 15 was not assessed for the fiscal year 1992 -1993.
C. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section
75, et seq. of the Revenue and Taxation Code of the State of California.
1. An easement for the purpose shown below and rights incidental thereto as set forth in
document
Granted to: Southern California Edison Company
Purpose: Public Utilities
Recorded: in book 8623 page 518, Official Records
Affects: - a portion of said land described therein
2. An easement for the purpose shown below and rights incidental thereto as set forth in
document
Granted to: Southern California Edison Company
' Purpose: Public Utilities
Recorded: in book 8709 page 388, Official Records
Affects: a portion of said land described therein
3. An easement for the purpose shown below and rights incidental thereto as set forth in
document
Granted to: Southern California Edison Company _
Purpose: Public Utilities
Recorded: in book 8709 page 390, Official Records
Affects: a portion of said land described therein
4. Rights of the parties in possession of said land, under unrecorded leases. Please
submit copies of said leases for our examination.
CLTA Preliminary Report Form (Rev. 11/18/82)
701755 -1
Page 5
Note No. 1: THIS COMPANY DOES REQUIRE CURRENT BENEFICIARY DEMANDS
PRIOR TO CLOSING. If the demand is expired and a current demand cannot be obtained,
our requirements will be as follows:
(a) If this Company accepts a verbal update on the demand, we may hold an amount
equal to one monthly mortgage payment. This hold will be in addition to the verbal
hold the lender may have stipulated.
(b) If this Company cannot obtain a verbal update on the demand, we will either pay off
the expired demand, or wait for the amended demand, at the discretion of the escrow.
PAYOFF INFORMATION
Note No. 2: AS OF JANUARY 1, 1990, CHAPTER 598, CALIFORNIA STATUTES OF
1989, (AB 512; INSURANCE CODE SECTION 12413.1) BECOMES EFFECTIVE. THE
LAW REQUIRES THAT ALL FUNDS BE DEPOSITED AND AVAILABLE FOR
WITHDRAWAL BY THE TITLE ENTITY'S ESCROW OR SUBESCROW ACCOUNT
PRIOR TO DISBURSEMENT OF ANY FUNDS.
ONLY CASH OR WIRED FUNDS CAN BE GIVEN IMMEDIATE AVAILABILITY
UPON DEPOSIT. -
CASHIER'S CHECKS, TELLER'S CHECKS AND CERTIFIED CHECKS MAY BE
AVAILABLE ONE BUSINESS DAY AFTER DEPOSIT.
ALL OTHER FUNDS SUCH AS PERSONAL, CORPORATE OR PARTNERSHIP
CHECKS AND DRAFTS MAY CAUSE MATERIAL DELAYS IN DISBURSEMENT OF
FUNDS ON THIS ORDER.
IN ORDER TO AVOID DELAYS, ALL FUNDING SHOULD BE WIRE TRANSFERRED.
OUTGOING WIRE TRANSFERS WILL NOT BE AUTHORIZED UNTIL
CONFIRMATION OF THE RESPECTIVE INCOMING WIRE TRANSFER OR
AVAILABILITY OF DEPOSITED CHECKS.
WIRING INFORMATION FOR THIS OFFICE IS AS FOLLOWS:
1st Interstate Bank - .
1018 North Main Street
Santa Ana, California 92701
ABA No. 122 - 000 -218
Account No. 180 - 060 -305
PLEASE REFERENCE TITLE ORDER NUMBER AND TITLE OFFICER.
Note No. 3: The premium for a policy of title insurance, if issued, will be based on 80%.
fg /jk
CLTA Preliminary Report Form (Rev. 11/18/82)
.' 15 3
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M11 111 F10VIS'OIS OF 4ALIC1011 STATE LA. 1110 LOCAL 01010AOCES NAVE ILEA
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rst2o 313340.41 77 4 1 . 1519'1 00/ •119 ►YR704.5 00 7 UA7 -
•
This plat is for your aid in locating your land with reference .
-' to streets and other parcels. It is not a survey. While this plat
is believed to be correct, the Company assumes no liability
for any Toss occuring by reason of reliance thereon.ti
COMMONWEALTH LAND TITLE COMPANY
�.•
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EXHIBIT A
LEGAL DESCRIPTION
LA CELLULAR GROUND LEASE
All that certain land situated in the State of California, County of Orange, City of Seal Beach,
described as follows:
Parcel 1 and 2 of Parcel Map recorded in book 15, page 3 of Parcel Maps, in the office of the
County Recorder, County of Orange, California.
EXCEPTING therefrom all oil, gas, or other hydrocarbon products thereunder, provided that
the owners of such excepted products may not perform any operations on the surface of said
land, such as drilling, exploration or extraction of such minerals except in "Area A" described
in the Final Decree rendered October 6, 1948, in the District Court of the United States in and
for the Southern District of California, Central Division, Case No. 3436 - Civil, a certified copy
of which decree was recorded November 5, 1952 in book 2407 page 87 of Official Records.
•
L.A. •
• CELLULAR
Los Angeles Cellular Telephone Company
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Los Angeles Cellular Telephone Company
P.O. Box 6028
Cerritos, California 90702 -6028
Attention: Vice President of Operations and Engineering
EXHIBIT "D"
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE ( "Memorandum of Lease ") is made this 23rd day of August , 195a, between
CITY OF SEAL BEACH. a municipal corporation as Landlord ( "Landlord ") and LOS ANGELES CELLULAR TELEPHONE
COMPANY, a California general partnership, as Tenant ( "Tenant "), who agree as follows:
Landlord has leased to Tenant and Tenant has leased from Landlord those certain portions of that certain.
Property, more particularly described in the Lease ( "Premises "), in the City of Seal Beach , County of Orange , State
of California, commonly known as 3131 Beverly Manor Road (at the rear of Fire Station #48) , more particularly
described in Exhibit "A" attached hereto ( "Property "), for a term commencing on September 1 , 195a, and ending five
(5) years thereafter ( "Initial Term "), with an option of Tenant to extend the Initial Term for one (1) consecutive period
of five (5) years ( "Additional Term "), on the terms and conditions set forth in said Lease, all the terms and conditions
of which Lease, including, without limitation, the Easements as more particularly described therein, are made a part
hereof as though fully set forth herein. During the Initial Term and any Additional Terms of the Lease, Landlord shall
not subordinate the Lease to any deed of trust or other Senior Interest without obtaining a Non - Disturbance and
Attornment Agreement from the proposed lender or other Senior Interest holder, nor shall it permit the construction of
any improvements on any property controlled by Landlord which might interfere or compete with Tenant's use of the
Premises, including the optimum functioning of its Communications Facility located thereon, all as more fully set forth
in the Lease.
Tenant shall have the absolute and unconditional right from time to time to grant to any person or entity a
security interest (including, without limitation, a security interest of first lien priority) in some or all of the
Communications Facility and /or any of Tenant's furniture, fixtures, equipment and /or other property utilized or to be
utilized in connection therewith ( "Equipment Financing ") and /or to assign or pledge Tenant's interest in this Lease and
the Premises, including the Easements, to any person or entity for purposes of financing its equipment or for the
operation of its business ( "Leasehold Assignment "), and to record against Tenant's interest in the Premises any
instruments or documents as may be required with respect to such Equipment Financing or Leasehold Assignment.
Landlord understands and agrees that Landlord shall not acquire any right to or interest in the Communications Facility
and /or any of Tenant's furniture, fixtures, equipment and /or other property utilized or to be utilized in connection
therewith notwithstanding the law of fixtures and /or the manner in which same are affixed to or placed on the Premises
or otherwise. Accordingly, Landlord understands and agrees that Landlord shall not grant, create or purport to grant
or create any security interest whatsoever in the Communications Facility and /or any of Tenant's furniture, fixtures,
equipment and /or other property utilized or to be utilized in connection therewith.
This Memorandum of Lease is prepared for the purpose of recordation, and in no way modifies the provisions
of the Lease.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease on the date first above written.
LANDLORD: TENANT:
CITY OF SEAL BEACH, LOS ANGELES CELLULAR TELEPHONE COMPANY,
a municipal orporation a California general partnership
� r
By: By: - 2"
Je y Bankston Mike Heil
Its: City Manager Its President and General Manager
APPROVED AS TO FORM:
B 7')'y gGZ ,.,,,/
Quinn M. Barrow
Its: City Attorney
[Acknowledgments to be affixed to this signature page.] �
•
[Legal Description of Property to be attached as Exhibit "A" to this document]
Initials:
Landlord
ov L
Tenant