HomeMy WebLinkAbout12/15/2010 - STAFF REPORTS - 4.B. ppLMg
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City CouncillCommunity Redevelo ment
Agency Staff Re ort
DATE: December 15, 2010 UNFINISHED BUSINESS
SUBJECT: APPROVAL OF A LEASE AGREEMENT WITH VERIZON WIRELESS,
FOR A NON-EXCLUSIVE USE OF FLOOR SPACE, ROOFTOP SPACE,
ANTENNA SPACE AND CABLING SPACE ON THE TOP DECK OF THE
CITY-OWNED PARKING STRUCTURE LOCATED AT 295 SOUTH
INDIAN CANYON DRIVE
FROM: David H. Ready, City Manager/Executive Director
BY: Community & Economic Development Department
SUMMARY:
The approval of this Lease Agreement will allow for the installation, operation and
maintenance of Verizon Wireless communications equipment to be installed on the top
deck of the City-owned parking structure located at 295 South Indian Canyon Drive.
This item was initially presented to Council on October 15, 2008 and was voted down
3-2 due to concerns with the quality of the proposed structures and exposed equipment
with limited opportunities to use screening or landscaping to cover this equipment.
Since that time, Verizon has revised the concept plans to ensure that all equipment,
conduits, etc, are enclosed and not visible from the parking structure and also
improved the quality of the enclosure using masonry block that will match the existing
elevator shaft structure. The Architectural Advisory Committee (AAC) has also had the
opportunity to review the concept plans on June 8, 2009 and voted 5-0 to support the
proposed location and general concept of this proposal.
The facilities to be constructed by Verizon Wireless include a small building enclosure
with a floor area of approximately 400 square feet (three or less parking spaces) to be
located along the north side of the stairwell adjacent to the existing north-west elevator
shaft structure, and an additional tower to be constructed on top of the existing elevator
shaft building (shown on Attachment Item 2).
ITEM NO. `� $
RECOMMENDATION:
1. Approve Agreement No. , Lease by and between Verizon Wireless, and
the Community Redevelopment Agency of the City of Palm Springs for non-
exclusive use of the City-owned parking structure to provide floor, rooftop,
antenna, and cabling space on the top deck of the parking structure.
2. Authorize the City Manager/Executive Director or his designee to execute all the
necessary documents.
BACKGROUND:
This Lease is for the non-exclusive use of floor space and rooftop space on the top
deck of the parking structure at 295 South Indian Canyon Drive by Verizon Wireless for
the purpose of installing, operating and maintaining communications equipment. The
facilities to be constructed by Verizon include a small building enclosure with a floor
area of approximately 400 square feet (three parking spaces or less), and an additional
tower to be constructed on top of the existing northwest elevator shaft building as
shown on the conceptual photograph simulations (Attachment Item 2). Verizon will
equip the facilities with antennas, wires, cables, conduits and pipes to operate their
wireless communication systems. Also, Verizon will install or have the local utility
install an electrical meter/sub-meter to measure the electrical power used by Verizon's
installation and will pay for their power usage either directly to the utility or to the
Agency. In addition the Lease will allow Verizon the non-exclusive right of ingress and
egress over the property 24 hours per day seven days a week, from a public right-of-
way, for the purpose of installation, operations and maintenance of their
communications facilities.
The City transferred a sublease interest in the parking structure to the Agency in an
action approved by Council and the Agency on February 6, 2008; (Res. No. 22153).
Under that Agreement, the Agency may not assign, sublet or otherwise transfer its
interest under this Sublease without City's prior consent, which consent may be
withheld, conditioned or delayed in City's sole and absolute discretion.
The concept plans were presented to the Architectural Advisory Committee (AAC) on
June 8, 2009. AAC supports the proposed location of these facilities, and the general
design concept but did make some recommendations that additional details be
provided, height of proposed structures be clarified and that the original architect for
the downtown parking structure be consulted during the detailed design phase. The
proposed communications building and antenna tower, (Attachment Item 2) would
need to go to back to Architectural Advisory Committee (AAC) and Planning
Commission (PC), once the design is completed in detail. This Lease is going to the
Agency first, however, to confirm that there is Council/Agency interest before having
them complete the planning process and detailed designs.
ram.
FISCAL IMPACT:
The Lease Agreement would provide the Agency revenue of$2,500.00/month.
Jo n!4ty
ay o d, Director of iana Shay
C m & conomic Development Redevelopment Coordinator
r rLIZ
DAVID H. READY Tom WilsaW
City Manager/Executive Director Assistant City Manager
1. Wireless Communications Facilities Site Lease Agreement
2. Photograph Simulations — Conceptual
3. Minutes of June 6, 2009 Architectural Advisory Committee Meeting
Attachment 1
Wireless Communications Facilities Site Lease Agreement
CITY OF PALM SPRINGS
WIRELESS COMMUNICATIONS FACILITIES SITE LEASE
This Communications Site Facilities Lease (the "Lease") is made and entered into this day
of , 2010, by and between the COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS (herein "LESSOR" or "Agency"), and Los Angeles SMSA
Limited Partnership, d/b/a VERIZON WIRELESS (herein "LESSEE") (LESSOR and LESSEE are
at times hereinafter collectively referred to as "Parties" or individually as the "Party").
RECITALS
WHEREAS, LESSOR is the fee title owner of property located at 295 South Indian
Canyon Drive in the City of Palm Springs, California (the "Property") more fully described in the
attached Exhibit A, which description is fully incorporated by reference; and
WHEREAS, LESSEE desires to lease space on the Property from said LESSOR on the
terms and conditions herein in order to install and operate a wireless telecommunications site as
more fully described in the attached Exhibit C (the "Facilities").
LEASE
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants,
conditions, and agreements contained herein, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. LEASED PREMISES:
1.1 PREMISES: LESSOR leases to LESSEE a portion of the Property as more fully
described in the attached. Exhibit B (the "Premises") and incorporated by reference.
1.2 LESSEE ACCESS: LESSOR shall provide LESSEE, LESSEE's employees,
agents, contractors and subcontractors access to the Premises within 24 hours after
LESSEE provides LESSOR notice thereof. However, in the event of an
"emergency or special circumstance" that would leave the Facilities inoperable
during normal non-business hours, LESSEE may access the Property to make
necessary repairs and must provide notice to LESSOR as soon as reasonably
practicable. For purposes of this Lease, the phrase "emergency or special
circumstance" shall be interpreted to mean automobile accidents and natural
disasters, including, but not limited to flooding, wind, and earthquakes.
2. USE OF LEASED PREMISES: To the extent provided in this Lease, LESSEE may use
the Premises to facilitate provision of wireless communication services, including the transmission
and the reception of communication signals of various frequencies. Subject to; the terms and
conditions of this Lease, LESSEE may install, construct, maintain, repair, replace and operate on
the Premises the communications and other facilities depicted and/or described in general in
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Exhibit C, as approved by LESSOR in writing prior to taking such actions. To the extent
reasonable, LESSOR shall cooperate with LESSEE in applying for and obtaining all licenses,
permits, and any and all other necessary approvals that may be required for LESSEE's use of the
Premises.
3. LEASE TERM:
3.1 INITIAL TERM: The initial term of this Lease shall commence on the date
LESSEE obtains all permits necessary allowing LESSEE the right to construct the
Facilities and shall continue for five (5) years from that date (the "Initial Term")
unless terminated earlier pursuant to Section 8 of this Agreement. In the event the
date at which LESSEE is granted its final permit falls between the I" and 151h of
the month, the Lease shall commence on the 0 of that month and if such date falls
between the 10h and 31 tit of the month, then the Lease shall commence on the 1't
day of the following month(either the "Commencement Date").
3.2 RENEWAL TERM: LESSOR grants LESSEE an option to renew this Lease for
three (3) additional five (5) year terms ("Renewal Term"). This Lease shall
automatically renew for the initial Renewal Term and for each of the two
subsequent Renewal Terms unless LESSEE provides LESSOR notice of its
intention not to renew not less than thirty (30) days prior to the expiration of the
Initial Term, the Initial Renewal Term, or either of the two subsequent Renewal
Terms. The Initial Term and each Renewal Term shall be collectively referred to
herein as the "Term."
4. PAYMENT OF RENT: At the Commencement Date, LESSEE agrees to pay to LESSOR
the amounts set forth in this section, on or before the first of each month, as rental for said
Premises for the Initial Term of the Lease and the Renewal Term. Each month shall be
paid in advance. The amount shall be payable to the City of Palm Springs, 3200 East
Tahquitz Canyon Way, Palm Springs, California 92262, Attn: Accounts Receivable,
Finance Department. In addition, LESSEE agrees to do and perform all other covenants
and agreements contained in this Lease. 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.
4.1 BASE RENTAL PAYMENT: The Base Rental Payment under this Lease shall be
TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) per month ("Base
Rental"),
4.2 COST OF LIVING ADJUSTMENT: Commencing on the first annual anniversary
of the Commencement Date, and for each annual anniversary thereafter, the annual
rent shall be increased by an amount equal to four percent (4%) of the rent for the
immediately preceding year.
4.3 LATE CHARGE: LESSEE acknowledges that late payment by LESSEE to
LESSOR of Base Rental will cause LESSOR to incur costs not contemplated by
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this Lease, the exact amount of such costs being extremely difficult and
impracticable to fix. Such costs include, without limitation, processing and
accounting charges. Therefore, if any installment of Base Rental due from LESSEE
is not received by LESSOR within ten (10) days after written notice is received
from LESSOR that the same is due and payable, LESSEE shall pay to LESSOR an
additional sum of three percent (3%) per month of the overdue Base Rental as a late
charge. The Parties agree that this late charge represents a fair and reasonable
estimate of the costs that LESSOR will incur by reason of such late payment by
LESSEE. Acceptance of any late charge shall not prevent LESSOR from
exercising any of the other rights and remedies available to LESSOR.
4.4 ADDITIONAL CONSIDERATION: In addition to the rental payments specified
above, within sixty (60) days of the Commencement Date of this Lease, LESSEE
shall pay to LESSOR the one-time sum of TWO THOUSAND FIVE HUNDRED
and 00/100 DOLLARS ($2,500.00), as additional rent, as reimbursement for
LESSOR's legal fees associated with the negotiation of this Lease. Such payment
shall not be refunded or reimbursed to LESSEE for any reason, regardless of
whether LESSEE terminates the Lease pursuant to its provisions or proceeds with
construction of the Facilities.
5. PROPERTY TAXES: LESSEE recognizes and understands that this Lease may create a
possessory interest subject to property taxation pursuant to Revenue and Taxation Code section
107.7 and that LESSEE may be subject to the payment of property taxes levied on such interest.
LESSEE shall timely pay all property taxes and assessments directly attributable to LESSEE's
possessory interest. In no event shall LESSOR be liable for any taxes owed as a result of this
Lease.
6. LESSOR INSPECTION AND ENTRY; ACCESS FOR INSPECTIONS:
6.1 LESSOR and/or its authorized representatives shall have the right to enter the
Premises upon reasonable prior notice to LESSEE (which shall not be less than
twenty-four (24) hours unless the LESSOR's Public Works Director determines that
exigent circumstances warrant a shorter period of time, so long as such entrance
does not unreasonably interfere with LESSEE's use of the Premises):
A. To determine whether the Premises are in good condition and whether
LESSEE is complying with its obligations under this Lease.
B. To do any necessary maintenance and to make any restoration to the
Premises that LESSOR has the right or obligation to perform.
C. To serve, post, or keep posted any notices required or allowed under the
provisions of this Lease.
D. To run electric or telephone conductors, pipes, conduits, or ductwork where
necessary or desirable over, under, or through the Premises in a manner
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which will not unreasonably interfere with LESSEE's use of the Premises.
6.2 LESSOR shall not be liable in any manner for any inconvenience, disturbance, loss
of business, or nuisance arising out of LESSOR's entry on the Premises as provided
in this section, except for damage resulting from the acts or omissions of LESSOR
or its authorized representatives. LESSEE shall not be entitled to an abatement or
reduction of rent if LESSOR exercises any rights reserved in this section.
7. CONSTRUCTION AND MAINTENANCE OF FACILITIES AND PREMISES:
7.1 LESSEE'S CONSTRUCTION: LESSEE shall have the right to install, construct,
maintain, repair, replace, and operate the Facilities on the Premises that are
depicted in Exhibit C. The Parties intend that the antennas and appurtenances
related thereto which are a part of the Facilities shall be constructed in such manner
as to make the cabinetry blend into the surroundings, i.e., LESSEE shall screen the
equipment. Thereafter, construction by LESSEE of any improvement, structure or
work on the Premises, shall be permitted only upon the express written consent of
the LESSOR, which LESSOR may either grant or withhold in its reasonable
discretion. Notwithstanding the foregoing, LESSEE shall be permitted to perform
without LESSOR's consent equipment repairs or replacements with equipment of a
"like kind" or substantially similar in nature, so long as such repairs or
replacements do not interfere with or restrict the public use of the Property, in
which case such work shall require the prior express written consent of the
LESSOR, which LESSOR may either grant or withhold in its reasonable discretion.
7.2 CONSTRUCTION OF IMPROVEMENTS: All improvements shall be made at
LESSEE's expense. LESSEE agrees that all improvements to the Premises shall be
made in a good and workmanlike manner and in compliance with the requirements
of all applicable laws, ordinances, and regulations. This includes zoning
requirements and building code requirements of the City of Palm Springs, and any
municipal or other governmental agency having jurisdiction over the Premises and
Facilities at the time the improvements are constructed. LESSOR agrees to
cooperate with LESSEE in connection with applying for any municipal permits for
the construction of the aforementioned improvements. The Parties understand and
agree that such cooperation shall not be implied to include any expenditure of funds
on the part of LESSOR or any implied promise or warranty that such permits,
discretionary, or otherwise, will be issued to LESSEE. LESSEE shall provide
reasonable notice to the LESSOR prior to entering the Premises for purposes of
constructing the Facilities, and shall coordinate the scheduling and logistics of same
with the Public Works Director to avoid any interference with the LESSOR's
operations. Once commenced, any and all improvements made by LESSEE with
respect to the installation of the Facilities shall be diligently pursued to completion.
7.3 MECHANIC'S LIENS: LESSEE shall not allow or permit to be enforced against
the Premises, or any part thereof, and shall defend, indemnify, and hold LESSOR
harmless from any mechanic's, material suppliers', contractors', tax, or
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subcontractors' liens arising from any claim, for damage, or growing out of the
work of any construction, repair, restoration, replacement, or improvement made by
or alleged to have been made by or on behalf of LESSEE. LESSEE shall pay or
cause to be paid all of such liens, claims, or demands before any action is brought
to enforce the same against the Premises. If LESSEE shall in good faith contest the
validity of any such claim, lien, or demand, then LESSEE shall, at its expense,
defend itself and LESSOR against same and shall pay and satisfy any settlement or
adverse judgment that may be entered thereupon prior to the execution thereof. In
the event of any such contest, LESSEE shall provide LESSOR with a security bond
in a form and amount LESSOR deems sufficient to allow the lien of record to be
discharged as a matter of law.
7.4 CARE DURING CONSTRUCTION: LESSEE shall exercise reasonable care
during construction. All applicable City standards and specifications shall be
followed.
7.5 LESSEE MAINTENANCE OF FACILITIES AND PREMISES: LESSEE's
maintenance of the Facilities and Premises shall include,but is not limited to:
A. Maintenance of all landscaping installed by LESSEE, if any;
B. Repairs and/or replacements to LESSEE's Facilities caused by acts of third
parties, including theft, graffiti, and intentional acts;
C. Maintaining, in good, clean, safe, and sanitary condition and repair, all of
LESSEE's personal property. All Facilities on the Property must be
maintained in a first-class condition, reasonable wear and tear excepted. All
maintenance must conform to the standards utilized by LESSOR and
provided to LESSEE in writing; and
D. All work necessary to comply with Federal, State, County, municipal, and
other governmental agencies and bodies having jurisdiction.
7.6 RELOCATION: In the event relocation is necessary due to LESSOR's installation or
maintenance of public improvements at the Property, LESSEE agrees to relocate at its sole
cost and expense its equipment on a temporary basis to another location on the Property,
hereinafter referred to as the"Temporary Relocation,"provided:
i. The Temporary Relocation is similar to LESSEE's existing location
in size and is compatible for LESSEE's use, in LESSEE's reasonable
determination;
ii. LESSOR gives LESSEE at least six (6) months written notice prior
to requiring LESSEE to relocate;
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iii. LESSEE's use at the Premises is not interrupted or diminished
during the relocation and LESSEE is allowed, if necessary, in LESSEE's
reasonable determination, to place a temporary installation on the Property
during any such relocation; and
iv. Upon the completion of any installation, maintenance, repair or
similar work by LESSOR, LESSEE is permitted to return to its original
location from the temporary location with all costs for the same being paid.
by LESSEE.
7.7 ABANDONMENT: If use of the Facilities is abandoned for at least two (2)
consecutive months, LESSEE or its designee shall be responsible for removing the
Facilities and returning the Premises to their original condition as approved by the
Public Works Director. LESSOR shall provide notice to LESSEE of said
abandonment. In the event LESSEE fails to comply with this provision in regard to
the removal of the Facilities and restoration of the Premises within ten (10) days of
said notice, LESSOR shall have the right to remove the Facilities and LESSEE
relinquishes any and all rights thereto, said Facilities shall become the property of
LESSOR by virtue of LESSEE's abandonment hereunder.
8. TERMINATION:
8.1 LESSOR'S RIGHT TO TERMINATE:
A. LESSOR may pursue any remedies available to it under applicable law,
including, but not limited to, the right to terminate this Lease, upon the
earliest of any of the following events:
1. LESSEE's failure to pay rent within fifteen (15) days following
receipt of notice of nonpayment from LESSOR;
2. LESSEE's failure to comply with any term, covenant, or condition of
this Lease after LESSEE has been given written notice of the
violation and has had thirty(30) days to cure same or, if such default
is not curable within such thirty (30) day period, has not proceeded
to commence such cure within such thirty (30) day period and
diligently proceeds to completion;
3. Interference by the Facilities with other authorized electrical or radio
frequency equipment installed on or around the Property by other
lessees at the Property prior to the Commencement Date, which
interference is not cured by LESSEE within thirty (30) days
following written notice thereof; provided however, LESSEE shall
have such extended period as may be required beyond the thirty(30)
days if the nature of the cure is such that it reasonably requires more
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than thirty (30) days and LESSEE commences the cure within the
thirty (30) day period and thereafter continuously and diligently
pursues the cure to completion.
4. Interference by the Facilities with LESSOR's operations or use of the
Property by LESSOR after LESSEE has been given written notice of
the violation and LESSEE fails to cure within thirty (30) days of
such notice; provided however LESSEE shall have such extended
period as may be required beyond the thirty(30) days if the nature of
the cure is such that it reasonably requires more than thirty(30) days
and LESSEE commences the cure within the thirty (30) day period
and thereafter continuously and diligently pursues the cure to
completion.
B. After the expiration of the Initial Term, LESSOR shall have the right to
terminate this Lease, without liability, if there is a finding by LESSOR's
City Council that the Premises are needed for other public purposes and
LESSOR gives (1) year's written notice of termination to LESSEE.
8.2 LESSEE'S RIGHT TO TERMINATE: LESSEE may terminate this Lease without
further liability for any reason whatsoever upon ninety (90) days written notice to
LESSOR. Upon termination, all prepaid rent will be retained by LESSOR unless
such termination is due to LESSOR's failure of proper ownership or authority, or
such termination is a result of LESSOR's default. In the event LESSEE terminates
the Lease prior to commencement of construction of the Facilities, all LESSEE's
obligations under this Lease shall terminate without further liability.
8.3 RETURN OF PREMISES UPON TERMINATION: Except as otherwise provided
herein, LESSEE shall at its sole expense remove all of LESSEE's Facilities, within
sixty (60) days following expiration or termination of this Lease. Upon the
expiration or termination of this Lease, LESSEE shall surrender the Premises to
LESSOR in a condition at least as good as existed on the date LESSEE executes
this Lease, less ordinary and reasonable wear and tear.
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9. INTERFERENCE:
9.1 LESSEE'S OBLIGATIONS: Prior to occupancy of the Premises and operation of
the Facilities by LESSEE or its agents, assigns or LESSEE's employees, LESSEE
agrees to:
A. Submit to LESSOR, within forty-five (45) days prior to operation, proposed
plans for antenna type and size, along with operating frequencies, effective
radiated power, and other necessary on-air technical data at LESSOR's
reasonable discretion for LESSOR's review and approval. If LESSOR does
not respond in writing to LESSEE within ten (10) days following LESSEE'S
request for approval, such request will be deemed to have been approved by
LESSOR.
B. Install or cause to be installed, all equipment according to generally
accepted standard engineering practices and in a good and workmanlike
manner.
C. Use reasonable efforts to investigate the cause of, and mitigate any
interference caused by, LESSEE on existing radio frequency equipment of
LESSOR following written notification of interference from LESSOR.
9.2 SUBSEQUENT PROPERTY LEASES: LESSOR agrees to include in all leases
between LESSOR and future lessees of the Property a covenant that the lessee shall
not interfere with other electrical or radio frequency equipment previously installed
on the Property and that if the lessee is not able to mitigate the interference, the
lease shall provide for termination thereof. Likewise, LESSOR will not permit or
allow the installation of any future equipment which (i) results in technical
interference problems with LESSEE's then existing equipment or (ii) encroaches
onto the Premises.
9.3 NON-INTERFERENCE: LESSEE's communication equipment and the use
thereof shall not interfere with the use of any other communication or similar
equipment of any kind and nature owned or operated by LESSOR or other
occupants of the Property existing as of the Commencement Date, except as may be
permitted by applicable laws. Subsequent to the installation by LESSEE of the
Facilities, LESSOR agrees not to install and to exercise commercially reasonable
effort to not allow installation of new equipment on the Premises if such equipment
causes interference with LESSEE's operations. All interference claims shall be
settled in accordance with the then prevailing interference rules and regulations
promulgated by the Federal Communications Commission.
10.0 DESTRUCTION OF PREMISES: If either the Premises or the Property is destroyed or
damaged as a result of a catastrophic event to the extent that, in LESSEE's reasonable discretion,
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LESSEE may no longer use the Premises for the intended purposes, LESSEE may elect to either:
A. Terminate this Lease, effective upon the date of the damage or destruction, by
delivering written notice within ninety (90) days of the date of the damage or
destruction and a request to terminate; or
B. Upon consent of LESSOR, which shall not be unreasonably withheld, conditioned
or delayed, use a portion of the Premises suitable for LESSEE's use specified by
LESSOR for provision of communication services on a temporary basis until such
time as the LESSEE's Facilities on the Premises are repaired or reconstructed so
that LESSEE can resume the provision of communication services from the
Premises. If LESSEE elects to continue this Lease and in the event that LESSOR
unreasonably delayed its consent for LESSEE to install the temporary facility in
order for LESSEE to continue its operation, Base Rental, as adusted by any cost of
living adjustment, shall abate for the period of non-use. Any such repair or
reconstruction shall be completed in an expeditious manner.
11. UTILITIES AND PROVISION OF SERVICE: LESSEE shall determine the availability of
and shall, at its sole cost and expense, cause to be installed in, on, and about the Premises all
facilities necessary to supply thereto all electricity, telephone, and other similar services required
to service the Premises. In the event any public utility requires an easement over the Property in
order to install equipment necessary to provide utility service to LESSEE, LESSOR hereby agrees to
grant an easement either to the LESSEE or to the public utility at no cost to the LESSEE. LESSOR
shall allow LESSEE to have its own electrical metering equipment installed. LESSEE shall obtain
all necessary approvals for the installation of the meter. An electrical plan shall be submitted to
LESSOR for approval, which approval shall not be unreasonably withheld, conditioned or delayed
prior to commencement of such work. LESSOR agrees to cooperate with LESSEE in its efforts to
obtain such utility service. During the Initial Term and the Renewal Term, LESSEE agrees to pay
directly to the servicing utility when due all charges for electricity, telephone and all other utility
services of every kind and nature supplied to and used by LESSEE on the Premises. LESSOR
shall be responsible for its electrical and other utility service and for the regular payment of
electrical and other utility charges attributable to the Property other than the Premises.
12. INDEMNIFICATION AND INSURANCE:
12.1 INDEMNIFICATION: Neither LESSOR nor any other officer or employee of
LESSOR shall be responsible for any damage or liability occurring by reason of any
acts or omissions on the part of LESSEE or its officers or employees under or in
connection with any activities under this Lease. It is also understood and agreed
that to the fullest extent permitted by law, LESSEE shall indemnify, defend (with
counsel reasonably acceptable to LESSOR), protect and hold harmless LESSOR
and its officers, agents and employees ("LESSOR's Parties") from and against any
and all claims, dernands, judgments, actions, damages, losses, penalties, liabilities,
costs and expenses (including, without limitation, attorneys' fees and court costs)
arising at any time directly or indirectly from or in connection with (i) any default
in the performance of any obligation by LESSEE to be performed under the terms
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of this Lease, (ii) LESSEE's use of the Premises, or (iii) the conduct of LESSEE's
business or any activity, work or things done, permitted or allowed by LESSEE in
or about the Premises, except to the extent caused by LESSOR's, LESSOR's Parties'
or LESSOR's contractors', guests', invitees', or licensees' negligence or willful
misconduct. The obligations of LESSEE under this section shall survive the
expiration or earlier termination of this Lease.
12.2 ASSUMPTION OF RISK: LESSEE, as a material part of the consideration to
LESSOR, hereby assumes all risk of damage to the Premises, including, without
limitation, injury to persons in, upon or about the Premises during LESSEE's use of
the Premises, arising from any use of the LESSEE's Facilities or other activities of
LESSEE or LESSEE's agents, employees, guests, or invitees (collectively
"LESSEE's Parties") on the Premises, except to the extent such damage or injury is
caused by the negligence or willful misconduct of LESSOR, LESSOR's Parties or
LESSOR's agents. LESSEE hereby waives all claims with respect thereof against
LESSOR, except as otherwise stated in this Lease. LESSOR shall not be liable for
any injury to LESSEE's Facilities, Premises, or injury to or death of any of
LESSEE's Parties, or injury to LESSEE's Facilities, or injury to or death of any
other person in or about the Premises from any cause except to the extent such is
caused by the negligence or willful misconduct of the LESSOR, LESSOR's Parties,
or LESSOR's agents, contractors, tenants, guests, invitees, or licensees.
12.3 INSURANCE:
A. Casualty Insurance: During the term of this Lease, LESSEE shall, at its sole
cost and expense, keep LESSEE's interest in the Premises and the Facilities,
including any improvements thereon both in the course of construction and
through the remainder of any term of this Lease, insured by responsible
insurance companies, licensed to do business in the State of California or
self insured, against loss or damage by fire and other such casualties as are
included in extended coverage. Such coverage shall include stipulated
value, vandalism and malicious mischief endorsements, in such amounts so
as to provide for the then actual replacement cost of all improvements on
the Premises.
B. LESSEE agrees, at its sole expense, and at all times during the term of this
Lease, to maintain in full force, or cause to be maintained in full force, a
policy or policies of commercial general liability insurance in an amount of
ONE MILLION DOLLARS ($1,000,000.00) per occurrence, including
property damage, written by one or more responsible insurance companies
licensed to do business in the State of California or a self insurer. LESSEE
shall ensure that LESSOR is named as an additional insured and such
additional insured certificate shall be provided to LESSOR prior to the
commencement of any work. Such policies shall insure against liability for
injury to persons and/or property and death of any person or persons which
may occur as a result of or in connection with the existence of the Facilities
10 wx
and improvements in, on or about the Premises.
13. DAMAGE OR DESTRUCTION OF IMPROVEMENTS TO PREMISES: LESSOR shall
have no duty or obligation to rebuild the Facilities or the improvements thereon if such Facilities
or improvements are substantially damaged during the Tenn, in whole or in part by any casualty.
LESSOR will give LESSEE (a) notice of such casualty within thirty (30) days after the date of the
casualty and (b) the right to terminate in sixty (60) days from said casualty date. In the event
LESSOR chooses not to rebuild the Facilities or improvements thereon, LESSEE shall be entitled
to terminate the Lease.
14. ASSIGNMENT AND SUBLEASING:
14.1 ASSIGNMENT: LESSEE shall not voluntarily assign or transfer its interest under
this Lease or in the Premises without first obtaining the prior written consent of
LESSOR, which consent shall be not unreasonably withheld, delayed or
conditioned. The transfer of the rights and obligations of LESSEE to a parent,
subsidiary, or other affiliate of LESSEE, or to any successor in interest or entity
acquiring fifty-one (51%) or more of LESSEE's membership interests or assets,
shall not be deemed an assignment and LESSOR's consent shall not be required for
such transfer. Any assignment without LESSOR's consent (when such consent is
required) shall be voidable and, at LESSOR's election, shall constitute cause for
exercise of LESSOR's remedies under applicable law, including termination of the
Lease. No consent to any assignment shall constitute a further waiver of the
provisions of this section. Notwithstanding the foregoing, it is understood that
LESSEE shall not be released from liability hereunder by virtue of any assignment.
As a condition precedent to any such assignment which requires LESSOR's
consent, LESSEE agrees to provide written notice to LESSOR of its intention to
assign at least thirty (30) days before the proposed effective date of any such
proposed assignment which notice shall include the identity of the proposed
assignee, copies of the proposed assignment documentation. As a further condition
precedent to any assignment, the assignee must assume, in writing, all of LESSEE's
obligations under this Lease. 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.
14.2 SUBLEASING: LESSEE shall not sublease any portion of the Premises except as
expressly provided herein. LESSEE shall be permitted to sublease portions of the
Premises to a wholly-owned subsidiary of LESSEE, provided LESSEE provides
LESSOR with express written notice of such sublease.
14.3 COLLOCATION: LESSEE shall reasonably cooperate with future communications
operators that would request collocation as long as there is no adverse impact on
LESSOR from an operational, maintenance, and repair standpoint.
15. RENEWAL/HOLDING OVER: Upon the expiration or termination of this Lease, LESSEE
shall surrender the Premises to LESSOR, subject to the provisions of Section 8.3 above. If
1
11
LESSEE shall remain in possession of the Premises after the expiration or termination of the
Lease, with the consent of LESSOR, either express or implied, such holding over shall be
construed to create a month to month tenancy subject to all the covenants, conditions, and
obligations hereof, and LESSEE hereby agrees to pay LESSOR, as monthly rental, an amount
equal to one hundred twenty-five percent (125%) of the most recent monthly rental price. Nothing
above shall be construed to give LESSEE any rights to so hold over and to continue in possession
of the Premises after the expiration of the Term without the express consent of LESSOR.
16. ENVIRONMENTAL: LESSEE and its agents, employees, or contractors subcontractors or
other representatives shall not bring upon the Premises, or permit or authorize any other person or
entity to bring upon the Property, including the Premises, .any hazardous materials, hazardous
substances, hazardous wastes, pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum
or other fuels (including crude oil or any fraction or derivative thereof). Notwithstanding the
foregoing, LESSEE may bring such fuels and lubricants onto the Premises as may be required for
operation of construction vehicles during construction and backup power for generators used in
connection with LESSEE's Facilities. In addition, LESSEE may also bring onto the Premises, any
lead-acid batteries, cleaning solvents, and other chemicals necessary for proper utilization and
maintenance of the LESSEE's Facilities. In bringing any materials or substance onto, or using any
materials and substances on, the Premises, LESSEE shall comply with all applicable federal, State,
and local government laws, regulations, and rules. LESSEE shall be solely responsible for any
damages or costs incurred by LESSOR due to any environmental contamination to the extent
arising from the presence or use of hazardous materials or substances that LESSEE, its agents,
employees, contractors, subcontractors or other representatives bring onto the Premises.
17. MISCELLANEOUS:
17.1 NO WAIVER: No covenant, term, or condition thereof shall be deemed waived,
except by written consent of the Party against whom the waiver is claimed. Any
waiver or the breach of any covenant, term or condition shall not be deemed to be a
waiver of any preceding or succeeding breach of the same or any other covenant,
term, or condition. Acceptance by LESSOR of performance other than full
performance by LESSEE after the time the performance shall have become due
shall not constitute a waiver by LESSOR of the breach or default of any covenant,
term, or condition unless otherwise expressly agreed to by LESSOR in writing.
17.2 ATTORNEY'S FEES AND COSTS: If either Party hereto shall bring any action for
any relief against the other, declaratory or otherwise, arising out of this Lease,
including any suit by LESSOR for the recovery of rent or possession of the
Premises, the prevailing Party shall be entitled to have and recover from the other
Party the prevailing Party's reasonable fees and costs (including reasonable
attorneys' fees), which shall be deemed to have accrued on the commencement of
such action and shall be paid whether or not such action is prosecuted to a
judgment.
17.3 NO JOINT VENTURE: Neither LESSOR nor any of its employees shall have any
control over the manner, mode or means by which LESSEE, its agents or
12
employees, use the Premises or Facilities described herein, except as otherwise set
forth herein. LESSOR shall have no voice in the selection, discharge, supervision
or control of LESSEE's employees, servants, representatives or agents, or in fixing
their number, compensation or hours of service. LESSEE shall perform all
covenants herein as a tenant of LESSOR and shall remain at all times as to
LESSOR a tenant with only such obligations as are consistent with that role.
LESSEE shall not at any time or in any manner represent that it or any of its agents
or employees are agents or employees of LESSOR. LESSOR shall not in any way
or for any purpose become or be deemed to be a partner of LESSEE in its business
or otherwise or a joint venturer or a member of any joint enterprise with LESSEE.
17.4 INTERPRETATION: The Parties hereto agree that all provisions hereof are to be
construed as both covenants and conditions as though the words imparting such
covenants and conditions were used in each separate section hereof. The captions
of the sections and subsections of this Lease are for convenience only and shall not
be deemed to be relevant in resolving any questions of interpretation or
construction.
17.5 INTEGRATION AND GOVERNING LAW: This Lease represents the entire
understanding of LESSOR and LESSEE as to those matters contained herein. No
prior oral or written understanding shall be of any force or effect with respect to
those matters covered by this Lease. This Lease shall be governed by the laws of
the State of California and construed as if drafted by both LESSOR and LESSEE.
Any action, arbitration, mediation, hearing or other proceeding related to this Lease
shall be conducted only in the County of Orange.
17.7 LEASE BINDING ON HEIRS AND ASSIGNS: Each of the terms, covenants, and
conditions of this Lease shall extend to, be binding upon, and inure to the benefit of
not only LESSOR and LESSEE, but each of their respective heirs, representatives,
administrators and assigns. Whenever in this Lease reference is made to either
LESSOR or LESSEE, the reference shall be deemed to include, whenever
applicable, the heirs, legal representatives, and assigns of each of the Parties, the
same as if in every case expressed.
17.8 CORPORATE AUTHORITY: Each party executing this Lease on behalf of a
corporation represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said corporation, in accordance with a duly adopted
resolution of the Board of Directors of said corporation and that this Lease is
binding upon said corporation in accordance with its terms.
17.9 NOTICES: Any written notices required pursuant to this Lease shall be made by
certified or registered mail, return receipt requested, or reliable overnight courier
and delivered to the following address:
To LESSOR: City of Palm Springs
3200 East Tahquitz Canyon Way
13
Palm Springs, CA 92262
Attn: City Clerk
Copy to: Woodruff, Spradlin & Smart
555 Anton Blvd. Suite 1200
Costa Mesa, CA 92626
Attn: Douglas C. Holland, City Attorney
To 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.
17.10 AMENDMENTS: This Lease may not be modified, altered, or amended except in
writing signed by both LESSOR and LESSEE. The Agency assigns to the City
Manager signature authority to execute future Lease Amendments and extensions
for periods not more than two (2) years each and provided that the City Manager
shall not have the authority to approve a decrease in the rental rate without the prior
approval of the City Council.
[SIGNATURE PAGE FOLLOWS]
16
14
IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed by
their duly authorized officers.
LESSOR LESSEE
COMMUNITY REDEVELOPMENT Los Angeles SMSA Limited Partnership, dba
AGENCY OF THE CITY OF Verizon Wireless
PALM SPRINGS
By: AirTouch Cellular, its General Partner
By:
Executive Director By:
Name: Walter L. Jones, Jr.
Date: Title: Area Vice President Network
TAX ID#: Date:
ATTEST
City Clerk
APPROVED AS TO FORM:
Counsel
15
EXHIBIT A
DESCRIPTION OF THE PROPERTY
16 �"
rARMNG STRUCrvR
LEGAL DESCREFTON:
ALL THAT PORTION OF PARCEL I OF FARC2'I.MAP NO,13574 AS REOORM W PAItM
MAP BOM 73 AT PAGE 52,RECORDS OF RIV WIDE COUN'iY,CALMORNIA AMID ALL OF
DOTS 17 AND 1S AND A PORTM Ole LOT 19 OF BUX K 29 OF PAx.M SP1tMS TOWN$ff 9 AS
FM O 19D INMAP BOOK 9 AT MOB 423.PjaMDS OF SAN DMW COMM.CALU O>1NIA.
MSCRIEM AS FMLOWS;
COM WC M0 AT THE SOLTTHM%hT CORNER OF SAD]PAUM 1,TM=NOM OV-W'-
9S'WHET ALONG TM BAST LING C>F SAIDPAm=I AND TER LM CW SAID L07CS 17,
1$AND 19 A DIS ANCH OF M.06 PFE1;TmNM SOU'M 990-521-490 WEST A DISTANCE OF
92.71 F BI-,
TIIENCE NORTH OV-W'-2r YAW A DISTANCE OF 25.01 FMT TO THE NORTH MM C P SAID
LOT 19;
TRM4M SOUTH 89"-S2'48"WEST ALONG SAID NORTH LM A DISTANCE OF 62.52 MT TO
TBE NORTHWEST CORNER OF SAID LOT 19,
TI M4M SOUTH W-05'-aT'EA.Sr ALONG THE WEST LING OIL SAD3 LOTS 19,IS 17 AND
PORTION 01FTHE%wTERLYLINKOP SAIDPARcm I A DISTANCE t7F 350.06FMTTO TAB
SOUTH LM OV SAID P,ARl:lL 1;
THM%"NORTH 89°«53'-Or BAST ALONG OM SOUT8 LM A DISTANCE OF 145.35 FART TO
TO POINT OF BEGMNING."
SUBAM TQ AIL USEbMNTS AND fit+Q,EMS OF WAY OF lGKMD F MY.
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EXHIBIT B
DESCRIPTION OF THE LEASED PREMISES
LESSOR leases to LESSEE approximately three hundred (300) square feet of space ("Floor
Space") and approximately two hundred twenty five (225) square feet on the roof ("Rooftop
Space") of the building ("Building") located on the Property(Building and Property are hereinafter
sometimes collectively referred to as the "Property"), for the installation, operation and
maintenance of communications equipment; together with such additional space on the roof of the
Building sufficient for the installation, operation, and maintenance of antennas ("Antenna Space");
together with such additional space within the Building and on the roof of the Building for the
installation, operation, and maintenance of wires, cables, conduits, and pipes ("Cabling Space")
running between and among the Floor Space, Rooftop Space, and Antenna Space, and to all
necessary electrical and telephone utility sources located within the Building or on the Property
subject to the provisions of the Lease related thereto; together with the non-exclusive right of
ingress and egress from a public right-of-way, seven(7) days a week, twenty four(24) hours a day,
over the Property and in and through the Building to and from the Premises for the purpose of
installation, operation, and maintenance of LESSEE's communications facility.
17
EXHIBIT C
DESCRIPTION OF THE FACILITIES
PROJECT DRAWINGS
(See Attached)
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18
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Attachment 3
Minutes of June 8, 2009 AAC Meeting
�phitectural Advisory Committee Meeting
IvlIf4es of June 6,2009
3.c St i(I Rio dense, courtyards and back t(,b patios still don't work. (Patios too tight)
3.d Gates'to,,streets from backyard pafJ0' Is a good move.
3.e Scoring in stucco was well recei#
3.f Fabric Sha & tructure in cgUard is very nice.
3.g Outstanding lan capm e the geometric design relating to the bldgs.).
ACTION: M/S/C (O'D94' - / hlin) 3-1 to approve with condition to create pedestrian path
between back to back cps i yards a'140,,,tgwer parapets at least 9 to 12 inches.
AGENDA ITEM #,4 "base # 5.1037-PD-
,�4mendment
Vista San Jacino, `1fan amendment to a previodMy submitted PDD changing from single-family to multi-
family resid 1 units on approximately 5.9 ai at 301 Rosa Parks Road, Zone R2, Section
34/T3/R4 'Mixed Use. (KL)
.AAC bers offered the following comments and recomm� d tions:
Consider a method of screening the northwesterly facinors from the prevailing winds.
TION: M/S/C 4-0
AGENDA ITEM #5: Case # 5.0901 MAA
41� Verizon to add a wireless tower and construct a 400 s.f. support enclosure on top of the existing
northwest elevator shaft located on the top deck of the City parking structure at 295 South Indian
Canyon Drive, Zone CBD, Section 15. (D.Shay)
Staff presentation was made by Assistant Planner, Glenn Mlaker who described the proposal to add a
telecommunication facility on the top deck of the City parking garage. The submitted plans show the
height of the new tower to be 23 feet above the top parking deck. All of the new buildings to be
constructed of slump stone block painted to match the existing structure.
Todd Fisher of Verizon was present and gave a brief description of the project mentioning that a
previous plan was presented to the City Council. At that meeting the Council instructed Verizon to
revise the plans and re-submit a better design. The plan presented at the AAC is a reaction to the
City Council request.
Diana Shay, Redevelopment Coordinator mentioned that the City is seeking AAC conceptual.
approval for the purpose of entering into lease negotiations with Verizon. A formal submission will be
forthcoming to the AAC after a lease is signed.
AAC members offered the following comments and recommendations:
5.a Overall height from the ground and parking deck must be part of detailed plans.
5.b Light pale locations on the top deck may need to be revised.
5.c Elevations of new buildings must include materials, door locations, and color.
5.d Tower location on top deck OK.
ACTION: M/S/C (King/ O'Donnell) 5-0-0 to recommend preliminary approval, with final detailed
plans to be re-submitted to AAC at a future date.
4. A A Iee
Case # 3.1613
Von's review of traffic calming plan and landscaping in front of store at the
Rimroc r, 4733 East Palm Canyon Drive, Zane CDN, Section 30. (DN)
2