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HomeMy WebLinkAbout07 - Radio Communication Tower Lease AgreementCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 April 10, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 ordkiff @city.newport- beach.ca.us SUBJECT: RADIO COMMUNICATION TOWER: LEASE AGREEMENT, REIMBURSEMENT AGREEMENT, BUDGET AMENDMENT. ISSUE: Should the City enter into a reimbursement agreement and long term lease with the County of Orange to upgrade an existing radio communications tower and provide enhanced communications for the Police and Fire Departments? RECOMMENDED ACTIONS: 1. Authorize the City Manager to enter into the Reimbursement Agreement and Long - Term Lease with the County of Orange. 2. Adopt Budget Amendment #BA -_ DISCUSSION: In 2001, the County determined that despite various technical enhancements to improve communication in several areas within Orange County, the public safety radio coverage in Newport Beach remained inadequate. In 2005, the City acquired the radio tower located at the City Utilities Yard from Entravision Communications for Eight Thousand Dollars ($8,000). The City elected to acquire the tower because the Utilities Department and Information Technology Division utilize the tower for communication purposes. After acquiring the tower, the City contacted the Orange County Sheriffs Communications division and informed the County that the City would like the County to install an 800 MHz communication facility on the tower to improve communications for the Police and Fire Departments. Based thereon, the County performed an engineering review of this potential new 800 MHz radio site and it was determined that it was possible to attain a 30 percent improvement for on- street and in- building radio coverage in the core Newport Beach area. The Newport Beach Police Department has stated that this coverage Shared Communications Facility: Reimbursement Agreement and Lease April 10, 2007 Page 2 improvement would be beneficial and that this shared project was highly valuable for public safety. Location of Radio Tower and Photo of Tower After discussing this matter with the County and performing structural analysis of the tower, it was determined that the to install the 800 MHz communication facility, it would be necessary to: (1) upgrade the tower (the tower upgrades would need to be made whether or not the 800 MHz system was installed); (2) design and construct a 600 square foot building (300 square feet would be used for the 800 MHz System and 300 square feet would be used by the City); (3) remove the old broadcast antennas (the old broadcast antennas would need to be removed whether or not the 800 MHz system was installed); and (4) install the 800MHz communication equipment. Almost two years of tower studies and discussions have resulted in a reimbursement agreement and lease that City staff believes is acceptable, and which the County Board of Supervisors has already approved. The details of the agreements are: Reimbursement Agreement: The proposed reimbursement agreement authorizes the City to construct a shared 600 square foot radio communications building and upgrade to the radio tower to accommodate 800 MHz Countywide Coordinated Communications System (CCCS) antennas, with the County reimbursing the City in the amount of $221,500 for the 'County's share of the total Project cost. The total estimated Project cost is $339,770 (i.e. (1) structural analysis of the tower ($9,020); (2) preparation of bid documents and plans for tower upgrade ($3,750); (4) tower upgrade ($27,000); (3) design of the 600 square foot building ($19,000); (4) construction of the 600 square foot building ($281,000). Shared Communications Facility., Reimbursement Agreement and Lease April 90, 2007 Page 3 The total estimated cost to the City of entering into the reimbursement agreement is $118,270 (i.e. $339,770 minus $221,500). The County has agreed to pay the majority of the costs because the City owns the land, building and tower, and will be responsible for ongoing maintenance of the facility. Under the agreement, the County will retain ownership of the equipment to be installed at the site, including the generator, the auto transfer switch and the diesel fuel tank. In addition, pursuant to the reimbursement agreement, the City will act as the Project Manager for the construction of the facility, working with the County to define the requirements and specifications. The City will then announce a Notice Inviting Bids (we plan to package this project with projects at the Newport Theatre Arts Center and the Utilities Building #3 remodel) and will directly manage the project including selection of suitable contractors and required licensing and permitting. The County will have input regarding the Notice Inviting Bids and will maintain right of approval /refusal for the project as defined in the reimbursement agreement. The City would be responsible for any cost overruns. Proposed Lease Agreement: The proposed Lease Agreement will allow the County to use the facility rent -free for a period of 20 years, which may be extended by mutual agreement. The terms of the lease authorize the premises to be used by the County to operate the new 800 MHz Communications Facility. Environmental Analysis: Approval of the reimbursement agreement and lease are not subject to CEQA because the City is not authorizing a project at this time. After the project is bid, the City will bring a contract for the construction of the project to the City Council for approval. In addition, the tower upgrade and building project are categorically exempt from CEQA, per section 15303 of the CEQA guidelines, because the activity involves the construction of limited numbers of new small facilities or structures. Fiscal Impact: This Project requires a budget amendment. The City's share of the total project would be approximately $118,270, with 50% coming from Water and Wastewater enterprise funds and 50% from unappropriated General Fund reserves. Public Notice: This agenda item was noticed in accordance with the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). A Prepared by: Aaron Harp, Assistant City Attorney Shared Communications Facility: Reimbursement Agreement and Lease April 10, 2007 Page 4 Submitted by: Davi Kiff, Assistant City Manager Attachments: Reimbursement Agreement and Lease Budget Amendment Project No: GA 055 - 485 - 2200 -20 -2 Project Name: 800 MHz Communications Site Project Location: City of Newport Beach — 949 West 16"' Street City Utilities Department Yard REIMBURSEMENT AGREEMENT This Reimbursement Agreement ( "Agreement ") is made this _ day of 2007 by and between the County of Orange, a political subdivision of the State of California, ( "COUNTY ") and the City of Newport Beach, a municipal corporation, ( "CITY "). RECITALS CITY is the owner of that certain real property ( "Property ") located at 949 West 16th Street in the City of Newport Beach, County of Orange, State of California. A depiction of the Property is attached hereto as Exhibit 1 which is incorporated herein by this reference. II. The Property's primary purpose is for use by CITY as its Utilities Department operations yard. III. CITY and COUNTY have agreed that it is in their respective interest to upgrade an existing communications tower owned by the CITY ( "Tower ") and construct a new equipment building ( "Equipment Building ") on the Property at shared expense with COUNTY, so that the COUNTY can install the COUNTY's 800 MHz radio mobile /wireless communications system and appurtenant equipment ( "800 MHz System ") on a portion of the Property ( "Project "). IV. After the 800 MHz System is installed, the parties have agreed to enter into a long term lease which will provide for the COUNTY to, among other things, operate the 800 MHz System on the portion of the Property ( "Lease "). A copy of the Lease is attached hereto as Exhibit 2 and incorporated herein by this reference. AGREEMENT NOW, THEREFORE, in consideration of the terms and conditions set forth in this Agreement and the Lease, the parties hereto agree as follows: PROJECT DESCRIPTION The Project Scope of Work consists of the following: A. Preparation of Plans & Specifications for the construction of the Tower Upgrades. B. Preparation of Plans & Specifications for the construction of the Equipment Building. CZ C. Upgrade of Tower including the replacement of guy cable assemblies, tower base foundation expansion, guy anchor beam reinforcement and guy anchor concrete pier reinforcement. D. Construction of the Equipment Building which will be an air conditioned, concrete block building (approximately 600 square feet) and the installation of an emergency 50 KW generator, a 600 gallon diesel fuel storage tank, and an automatic transfer switch. All elements shall be provided in accordance with the COUNTY approved Plans and Specifications as set forth in Section 5 of this Agreement. E. COUNTY's removal from the Tower of the existing radio equipment that is no longer in use, as denoted by the CITY. F. COUNTY's installation of the 800 MHz System and ancillary equipment. G. COUNTY's installation of utilities connections and separately metered services. 2. COST SHARING The CITY and COUNTY hereby agree as follows: A. The COUNTY will reimburse the CITY in the amount of Two Hundred Twenty -One Thousand Five Hundred Dollars and No Cents ($221,500.00) for its share of the costs and expense of those portions of the Project identified in Section 1(A) through Section 1(D) hereunder. The CITY shall be liable for all other costs associated with completing the work identified in Section 1(A) through Section 1(D). B. The financial expenditures by COUNTY that relate in any way to the work set forth in Section 1(E) through Section 1(G), shall not count towards the COUNTY's financial obligations under this Agreement (i.e. costs and expenses associated with COUNTY's performance of the work described in Sections 1(E) through 1(G) shall not count towards the COUNTY's obligations set forth in Section 2 A). TERM This Agreement shall be in full force and effect until the specified obligations of both Parties have been fulfilled or the Agreement is terminated as set forth herein. 4. TERMINATION Except as otherwise provided herein, in the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of thirty (30) calendar days, or if more than thirty (30) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within thirty (30) calendar days after K receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non- defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof, and that party shall have no further obligations under this Agreement. 5. PLANS & SPECIFICATIONS The CITY and COUNTY agree that the CITY shall prepare plans & specifications for the Tower upgrade and Equipment Building ( "Plans and Specifications ") and the CITY shall submit the Plans and Specifications to the COUNTY's Director, Sheriff /Communications ( "Communications Director") for review and approval. The Plans and Specifications shall meet the COUNTY's standards and technical requirements. The Communications Director's approval does not apply to the engineering adequacy of the Project specifications, plans and drawings. 6. CITY OBLIGATIONS CITY and COUNTY shall work cooperatively together so the Project can be constructed in a manner that minimizes the Project costs. A. CITY shall enter into and administer contracts for the design services necessary for those portions of the Project identified in Section 1(A) through (D), which includes contracting with the necessary engineering consulting services to accomplish the design efforts. B. CITY shall be responsible for compliance with the California Environmental Quality Act ( "CEQA ") (Pub. Resources Code, Section 21000 et seq.) for all activities associated with the Project, except for the portion of the Project identified in Section 1(F), and CITY shall be the Lead Agency for purposes of the CEQA and, in such capacity, shall conduct such environmental review (whether by Environmental Impact Report, Mitigated Negative Declaration, Negative Declaration, or Notice of Exemption) as CEQA may require. CITY shall supply to COUNTY a copy of the CITY approved environmental review document. C. CITY shall prepare and issue public works bid packages and administer the construction contracts for those portions of the Project identified in Section 1(C) through Section 1(D) of this Agreement. D. Upon opening of bids for those portions of the Project identified in Section 1(C) through Section 1(D), CITY shall submit results for review and approval by COUNTY. COUNTY shall have a period of ten (10) calendar days for review of bid results and approval or rejection of the successful bidder. If the COUNTY fails to respond within ten (10) calendar days, the COUNTY shall be deemed to have approved the bid. In the event the COUNTY rejects the successful. bidder, the CITY shall reject all bids or shall proceed with the work at its sole cost and expense, and without reimbursement from the COUNTY. If the CITY proceeds with the work at its sole cost and expense and without reimbursement from the COUNTY, this Agreement shall be terminated and of no further force and effect. The CITY and COUNTY agree that the CITY reserves the right to reject all bids. If the CITY rejects all bids, and the CITY and COUNTY agree to not re -bid the project, this Agreement shall be terminated and of no further force and effect and the COUNTY shall be refunded all funds advanced to the CITY, less half of the design cost actually incurred by the City for the work set forth in Section 1(A) through 1(B) above. E. CITY shall, at its sole expense, obtain all necessary permits for construction of those portions of the Project identified in Section 1(C) through Section 1(D), above, from federal, state and local governmental agencies. CITY shall, at its sole expense, fully comply with all laws, standards, statutes, restrictions, ordinances, requirements and regulations (collectively "laws ") of all governmental agencies with jurisdiction over the Project. F. Provided the COUNTY or CITY does not reject the successful bidder, CITY shall enter into a contract for construction of the Project in accordance with the approved Plans and Specifications ( "Construction Contract'). G. CITY shall require a one -year warranty on those portions of the Project identified in Section 1(C) through Section 1(D) from its construction contractors. H. CITY shall promptly inform the COUNTY during the course of construction of any proposed change orders to the construction contract that substantially impacts the COUNTY's interest. Copies of proposed change orders that substantially impact the COUNTY's interest will be provided to the COUNTY within five (5) working days of submission to CITY. All change orders that substantially impact the COUNTY's interest shall be subject to the prior written approval at the sole discretion of the Communications Director, which approval shall not be unreasonably withheld CITY shall furnish and deliver to COUNTY all record drawings of the those portions of the Project identified in Section 1(C) through Section 1(D) and any additional project - related documents requested by COUNTY at no cost to COUNTY. COUNTY'S OBLIGATIONS A. COUNTY shall perform any and all work related in any way to those portions of the Project identified in Section 1(E) through Section 1(G) of this Agreement and be liable for all costs and expenses related thereto without reimbursement from CITY. B. COUNTY shall obtain all necessary permits for construction of those portions of the Project identified in Section 1(E) through Section 1(G) from federal, state and local governmental agencies and fully comply with all laws of all governmental agencies with jurisdiction over the Project. C. COUNTY shall furnish and deliver to CITY all record drawings of those portions of the Project identified in Section 1(F) through Section 1(G) and any additional project related documents requested by CITY at no cost to CITY. D. COUNTY shall require any contractor, subcontractor, person or entity performing any portion of the work set forth in Sections 1(E) through 1(G) to: (1) comply with Section 11, Tower Work, and Section 16, Insurance, Contractors Liability Insurance of the Lease which is attached hereto; and (2) enter into an indemnity agreement, which is approved as to form by the City Attorney, indemnifying the City, its officials, officers, employees, agents and volunteers from all liability, to the maximum extent permitted by law. 8. CONSTRUCTION (N) Unless this agreement is terminated as otherwise provided herein, the CITY and COUNTY agree to complete all elements of the Project within three hundred and sixty five (365) days following the execution of this Agreement, or such other date as may be mutually agreed to by the parties hereto in writing, in accordance with the Scope of Work and Plans and Specifications. Subsequent to the completion of the Project, and prior to occupancy by COUNTY, CITY shall request in writing the Communications Director's written approval and acceptance of the Project. Said acceptance shall be manifested by letter from the Communications Director and may be subject to completion of "punch list" items. Said punch list will be generated by the Communications Director. In the event the Communications Director does not respond within ten (10) calendar days to the written request by the CITY, the COUNTY shall be deemed to have accepted the Project. 9. TIMING AND REIMBURSEMENT (N) Within sixty (60) days of the execution of this Agreement, COUNTY shall pay the CITY One Hundred and Twenty Thousand Dollars and No Cents ($120,000.00) as partial payment for services and direct costs previously or presently expended by the CITY towards the Project. Within sixty (60) days of the COUNTY's inspection and acceptance of the Equipment Building shell, the COUNTY shall pay the CITY Sixty Thousand Dollars and No Cents ($60,000.00). Within sixty (60) days of completion of the entire Project including punch list items, the COUNTY shall pay the CITY Forty -One Thousand Five Hundred Dollars and No Cents ($41,500.00). The City shall provide the COUNTY with any documentation related to the Project that it requires including, but not limited to, invoices. 10. LEASE Unless this Agreement is terminated as provided herein, all parties hereto agree to execute the Lease within ten (10) working days of the Communications Director's acceptance of the Project as provided in Section 8. 9 11. RECORDS For a period of three (3) years after final payment hereunder or until all claims related to this Agreement are finally settled, whichever is later, CITY shall preserve and maintain all documents, papers and records relevant to the work performed or property or equipment acquired in accordance with this Agreement. For the same time period, CITY shall make said documents, papers and records available to COUNTY or their duly authorized representatives for examination, copying, or mechanical reproduction on or off the premises of CITY upon request by COUNTY during normal working hours. 12. AMENDMENT No alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by duly authorized representatives of the parties hereto, and no oral understandings or agreement not incorporated herein shall be binding on the parties hereto. 13. ASSIGNMENT CITY shall not assign this Agreement in whole or in part without the express written consent of COUNTY. 14. RECITALS The Recitals paragraphs above are hereby incorporated in this Agreement by this reference. 15. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 16. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 17. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 18. SEVERABILITY If any term or portion of this Agreement is held to be invalid,. illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this 0 ID Agreement shall continue in full force and effect. 19. INTEGRATED AGREEMENT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 20. ATTACHMENTS This Agreement includes the following, which are attached hereto and made a part hereof. Exhibit 1 Depiction of Property Exhibit 2 Lease bl IN WITNESS WHEREOF, the parties have executed this Reimbursement Agreement the day and year first above written. COUNTY APPROVED AS TO FORM: County Counsel By: Deputy Date: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF BOARD OF SUPERVISORS ATTEST: DARLENE J. BLOOM Clerk of the Board of Supervisors of Orange County, California COUNTY OF ORANGE Chairman, Board of Supervisors 0 CITY APPROVED AS TO FORM: City Attorney By: Assistant City Attorney Date: CITY OF NEWPORT BEACH By: Mayor ATTEST: 0 City Clerk i-2 2 4 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 Project No: GA 055-485- 2200 -20 -2 Project Name: 800 MHz Communications Site Project Location: City of Newport Beach — 949 West 16`h Street City Utilities Department Yard EXHIBIT 2 LEASE THIS LEASE ( "Lease ") is made this _ day of 200_, by and between the COUNTY OF ORANGE, a political subdivision of the State of California, hereinafter referred to as "COUNTY," and the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "LESSOR." RECITALS A. LESSOR is the owner of that certain real property ( "Property') located at 949 West 16`h Street in the City of Newport Beach, County of Orange, State of California. A depiction of the Property is attached hereto as Exhibit A which is incorporated herein by this reference. B. The Property's primary purpose is for use by LESSOR as its Utilities Department operations yard. C. On , 2007, LESSOR and COUNTY entered into a Reimbursement Agreement, which this Lease is an Exhibit to, whereby LESSOR agreed to upgrade an existing LESSOR owned communications tower ("Tower") and constructa newequipment building ("Equipment Building ") on the Property at shared expense with COUNTY. The Reimbursement Agreement is incorporated herein by this reference. D. COUNTY desires and LESSOR agrees to provide COUNTY with a long -term Lease of a portion of the Property for the purpose of constructing, installing, operating, maintaining, repairing and altering COUNTY's 800 MHz radio mobile/wireless communications system and appurtenant equipment ('800 MHZ System "). In consideration of which, and the other considerations hereinafter set forth, the parties hereto mutually agree as follows: 1. DEFINITIONS (1.2 S) "Board of Supervisors" means the Board of Supervisors of the County of Orange, a political subdivision of the State of California. "Sheriff' means the Sheriff of the County of Orange, or designee, or upon written notice to LESSOR, such person or entity as shall be designated by the Board of Supervisors. "Communications Director" means the Director, Sheriff /Communications, County of Orange, or designee, or upon written notice to LESSOR, such other person or entity as shall be designated by the Sheriff- Coroner. "County Counsel" means the County Counsel, County of Orange, or designee, or upon written File: GA 055185- 2200 -20 -2 i <{ 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 54 notice to LESSOR, such other person or entity as shall be designated by the County Executive Officer or the Board of Supervisors. "Corporate Real Estate" means the Resources Development and Management Department, Internal Services, Real Estate Division, Corporate Real Estate for the County of Orange, or upon written notice to LESSOR, such entity as shall be designated by the County Executive Officer or the Director, Resources Development and Management Department. 2. PREMISES (1.3 N) As provided in this section, LESSOR leases to COUNTY that certain real property hereinafter referred to as "Premises," composed of an exclusive right to use a portion of the Tower (as designated on Exhibit B, page 2), one -half of the interior area of the Equipment Building (as designated on Exhibit B, page 1, Equipment Room #R -2) and the exterior area of the Equipment Building where the COUNTYs diesel generator and diesel fuel storage tank are located (as designated on Exhibit B, page 1, Generator). Exhibit B is attached hereto and incorporated herein by this reference. The parties hereto agree that: (i) the sidewalk areas depicted on Exhibit B, page 1, shall be jointly used by the parties, the COUNTY shall have exclusive and unencumbered use of space, as described above and identified on Exhibit B, on the Tower for the installation, operation, repair and maintenance of its 800 MHz System communications equipment. COUNTY and LESSOR agree that the LESSOR shall have the right to: (i) use all other areas of the Tower not specifically designated for COUNTY use; (ii) run cable and material over the COUNTY'S portion of the Tower as necessary to connect to equipment installed on the Tower provided that these items do not disturb, alter or interfere with COUNTY'S 800 MHz System equipment installed on the Tower; and (iii) the right to ingress and egress over the portion of the Tower designated for COUNTY use provided that the LESSOR does not disturb, alter or interfere with COUNTY'S 800 MHz System equipment installed on the Tower. COUNTY, at its sole cost and expense, shall be responsible for the installation, operation and maintenance of its 800 MHz system and Facility, as defined in Clause 4 of this Lease. COUNTY shall not be responsible for costs, expenses or other sums related to LESSOR's activities on or within its occupied portion of the Property. 3. ACCESS (N) The parties acknowledge that the Property is a secured facility and that LESSOR has a right to impose as a condition of this Lease reasonable security measures. COUNTY shall comply with any reasonable security measures required by LESSOR, COUNTY shall have the non- exclusive right of ingress and egress to and from the Premises on, within, over and across the Property, an access way to and from the nearest public street and driveway, and parking areas for COUNTY's personnel, vehicles and equipment, as necessary on and within the Property for the installation, operation, maintenance and alteration of COUNTY's 800 MHZ System, Facility, equipment and other items located on the Premises, and to electrical power facilities, connections and other utilities as needed to service COUNTY's 800 MHz System and Facility. LESSOR agrees that COUNTY shall have access to the Property and Premises on a twenty - four (24) hour per day basis on every day of each year of the term of this Lease and any reasonable security measures imposed by LESSOR shall not prohibit said access. LESSOR shall provide COUNTY, at no charge or deposit, with as many keys and /or access cards as needed for gates or other secured entries to the Property and the Premises. COUNTY shall provide, at its sole expense, all security provisions it deems necessary to 2 File: GA 055485- 2200 -20 -2 is 2 4 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 54 protect its Facility and the Premises. COUNTY shall comply with all fire and safety codes and shall not obstruct access of emergency vehicles to and within the Property. 4. USE (2.1 N) COUNTY Use: The Premises shall only be used by COUNTY during the term of this Lease for a governmental use (i.e. non - commercial use) and lawful activities related to the construction, installation, alteration, operation, repair, and maintenance of its 800 MHz System and appurtenant structures including, without limitation, the installation of an exclusive use communications equipment room, emergency diesel generator, diesel fuel storage tank, auto transfer switch, air conditioning unit, and Tower mounted microwave dishes and antennas ( "Facility"). The microwave dishes and antennas shall be used for the transmission and the reception of radio communication signals on various frequencies. COUNTY shall not cause or allow Premises to be used for any purpose other than for those uses described in this Clause. Permits, Licenses, Approvals: LESSOR agrees to reasonably cooperate with COUNTY, at COUNTY's sole cost and expense, in making application for and obtaining all licenses, permits, and any and all other necessary approvals that maybe required for COUNTY's use of the Premises. Representatives: LESSOR and COUNTY shall each identify to the other party a representative as a point of contact for this Lease, and at all times during the term of this Lease shall maintain a viable point of contact to ensure LESSOR and COUNTY have reasonable access to LESSOR and COUNTY personnel knowledgeable about the Property and the Premises and the operation and maintenance of the respective communications systems. Use By Third Parties: Prior to the authorization by LESSOR to any third -party to install any communications equipment on the Tower, within LESSOR's portion of the Equipment Building or at any other location within the Property or Premises, LESSOR shall first submit the proposed use in writing to COUNTY. Said proposed use shall be subject to the written approval of the Communications Director based on and consistent with the provisions of Clause 5, Mutual Non - Interference, herein and said approval shall not be unreasonably withheld. COUNTY shall respond within thirty (30) days from the date of receiving written notice of the proposed use from LESSOR to LESSOR with its approval, rejection or required reasonable mitigations for the proposed use. Failure of the COUNTY to respond within thirty (30) days shall be deemed to be approval by the COUNTY. Alteration By LESSOR/COUNTY: LESSOR shall not substantially alter or modify any improvement within the Premises without the prior written approval of COUNTY. Likewise, COUNTY shall not substantially alter or modify any improvement within the Premises without the prior written approval of LESSOR. 5. MUTUAL NON - INTERFERENCE (N) File: GA 055485- 2200 -20 -2 IL 2 4 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 54 Upon activation of the COUNTY communications equipment, COUNTY shall confirm, at COUNTY's sole cost and expense, that COUNTY's radio equipment is not interfering with existing systems operating on the Tower and at the Property. Any modification necessary to LESSOR's communications equipment, operating on the Tower or at the Property, to accommodate COUNTY's operation of its Facility and 800 MHz System, shall be at COUNTY's sole cost and expense and shall be completed prior to the COUNTY's operation of the Facility and 800 MHz System. COUNTY shall operate its Facility in such a manner so as not to interfere with LESSOR's use of the Property or use of the Property by other LESSOR authorized parties, and LESSOR shall operate its radio communications system and otheractivities on the Property in a manner so as not to interfere with COUNTY s use of the Premises and its Facility. All operations by LESSOR and COUNTY shall be lawful and in compliance with all Federal Communications Commission ( "FCC ") requirements and State and local codes and ordinances. LESSOR and COUNTY agree to reasonably cooperate with each other to prevent and mitigate any interference with each other's facilities and equipment and use of the Premises and Property. Notwithstanding the provisions of Clause 4, Use, herein, LESSOR shall not permit any third party user of the Tower or any other portion of the Property to interfere with, or in any other circumstance cause interference with, the transmission of signals to or from COUNTY's radio communications facilities. In the event any such interference occurs, COUNTY shall have the right to bring action to enjoin such interference. Prior to authorizing any third party to operate equipment from the Property, LESSOR shall require said third party to test its transmissions to determine if any interference exists with COUNTY s radio signals. COUNTY shall have the right to attend such test. In the event that interference does exist, LESSOR agrees to require the third party to modify and /or eliminate equipment found to be the cause of interference to the satisfaction of the Communications Director. 6. TERM (2.2A S) The term of this Lease shall be twenty (20) years, commencing the first day of the first full calendar month following the date of execution by COUNTY and LESSOR ( "Commencement Date "). Parties agree that the Commencement Date of this Lease will be confirmed in writing by either party upon demand by the other. Following the initial 20 -year term of this Lease, the term may be renewed and extended by mutual agreement of LESSOR and COUNTY subject to Clause 5, Amendment, of the General Conditions of this Lease. 7. OPTION TO TERMINATE LEASE (2.4 N) COUNTY shall have the option, at its sole discretion, to terminate this Lease at any time and for any reason upon giving LESSOR written notice at least sixty (60) days prior to said termination date. LESSOR shall have the option, at its sole discretion, to terminate this Lease by providing the COUNTY with sixty (60) days written notice of the termination date if: (1) the 800 MHz System, and or an approved successor or assign, fail to operate the 800 MHz System for twelve (12) consecutive months; or (2) any federal, state, or local law, statute, ordinance, rule, or regulation prohibits the Facility or 800 MHZ System from operating at the Property or Premises. In the event of early termination of this Lease pursuant to this paragraph 7, and in addition to any other obligations of COUNTY herein, COUNTY is obligated to remove the Facility File: GA 055- 485- 2200 -20 -2 I-1 2 including all personal property, and repair the Premises pursuant to Clause 9, Construction and Alterations, of this Lease. 4 6 8. RENT (N) 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 This Lease shall be rent -free to the COUNTY for the duration of the Lease term and any extension thereof. 9. CONSTRUCTION AND ALTERATIONS (4.4 N) At its own expense, in a good and workmanlike manner, and in compliance with all code and permit requirements of all local, county, state, and federal laws, ordinances, rules and regulations, and subject to the provisions of Clause 5, Mutual Non - Interference, of this Lease, COUNTY may, at any time during the term of the Lease, make improvements and modifications to its 800 MHz System and Facility located on the Premises, including but not limited to the installation of communications equipment, appurtenant structures, auto transfer switch, air conditioning, emergency diesel generator, diesel fuel tank, fixtures, partitions, counters, shelving, and other ancillary equipment as deemed necessary or appropriate. Prior to initial construction or any major renovation of the 800 MHz System and Facility located on the Premises, COUNTY shall obtain LESSOR's written approval of COUNTYs plans and specifications for COUNTYs work, which approval shall not be unreasonably withheld or conditioned. LESSOR shall give such approval or provide COUNTY with its requests for changes within twenty (20) working days of LESSOR's receipt of COUNTY's plans and specifications. COUNTY shall have the right to improve existing utilities and bring any new utilities across the property needed to service the 800 MHz System and Facility, subject to reasonable conditions and provided that the existing conditions are repaired to their original condition in a timely manner. It is agreed that any such communications equipment, appurtenant structures, auto transfer switch, air conditioning, emergency diesel generator, diesel fuel tank, fixtures, partitions, counters, shelving, or other ancillary equipment attached to or placed upon or within the Premises or Property by COUNTY shall be the personal property of COUNTY. COUNTY shall remove, at COUNTYs sole expense, the 800 MHz System, Facility and all personal property by the last day of the Lease term (or extended Lease term), or if earlier terminated, within sixty (60) days after termination. COUNTY agrees that the Premises shall be left in as good condition as when received, reasonable wear and tear excepted. 10. REPAIR AND MAINTENANCE (5.1 N) LESSOR Obligations: LESSOR shall maintain, in good condition and repair and at its sole expense, the Tower and the foundation, all structural components, roof, exterior walls and drainage systems of the Equipment Building. LESSOR shall ensure COUNTYs access to its Premises is unobstructed. LESSOR shall keep the area immediately surrounding the Tower and Equipment Building unobstructed, and free and clear of rubbish and litter. LESSOR shall, at all times during the term of this Lease and at its sole expense, maintain in good operating condition all Federal Aviation Administration ( "FAA') required Tower lighting and markings. LESSOR shall additionally be responsible for providing any FAA required File: GA 055485- 2200 -20.2 14 lighting outage notifications and complying with all current and future FAA requirements 2 relating to the Tower. 4 COUNTY Obligations: 6 COUNTY expressly agrees to maintain the Premises in a safe, clean, wholesome, sanitary condition and in compliance with all applicable laws. COUNTY, at its sole cost and expense, 8 shall maintain in good condition and repair the Premises, the 800 MHz System, its Facility, and its portion of the Equipment Building including interior walls, floor, ceiling, all wiring, 10 plumbing and utility connections, the diesel generator, auto transfer switch, fuel tank and fuel storage area. COUNTY also agrees to install any necessary materials or devices to protect its 12 equipment and facilities installed in the Equipment Building from temporary leaks in the roof that may occur so that the COUNTY's equipment and facilities are not damaged. The 14 COUNTY agrees to immediately notify the LESSOR of any condition caused by the LESSOR or that LESSOR is responsible for that COUNTY believes may cause damage to the 16 COUNTY's Facility and /or equipment installed in the Equipment Building so thatthe LESSOR can take any required action. 18 Air Conditioning Maintenance: 20 LESSOR and COUNTY shall each be responsible forthe maintenance, servicing and repairof 22 their respective separate air conditioning systems and the cost and expense thereof. 24 11. TOWER WORK (N) 26 Any contractor or other party performing work on the Tower shall comply with all safety and hourly requirements for employees, in accordance with Federal, State and local governmental 28 safety and health regulations, and laws as well as reasonable security measures required by LESSOR. 30 Contractors shall assure that all Tower workers and supervisors are trained and currently 32 certified tower climbers, using all required climbing safety equipment. The contractor shall utilize a program of regular climbing apparatus testing. Proof of current certification and 34 documentation of compliance and testing for each employee shall be submitted to the COUNTY and LESSOR. 36 Contactors shall assure that all Tower workers and supervisors are trained in EME Safety 38 compliance and possess RF Safety dosimeter monitoring devices. These devices shall be operated when working on the Tower. No Tower work shall be performed without the 40 presence of a contractor provided safety person on the Premises. Where necessary, COUNTY and LESSOR operated transmitters shall be turned off to meet FCC EME Safety 42 and occupational regulations for tower workers. 44 Contractor's on -site safety person shall be trained and currently certified in first aid and Cardio Pulmonary Resuscitation (CPR), and maintain an industrial first aid kit in their vehicles at all 46 times. 48 COUNTY and LESSOR agree that all Tower work contractors, climbers and others involved in Tower work shall be required to have insurance coverage in a form and amount as is 50 deemed necessary by the COUNTY and LESSORS Risk Managers to adequately protect COUNTY and LESSOR, and who shall be named as additional insureds. COUNTY and 52 LESSOR Risk Managers approval shall be required prior to any work being performed on the Tower. 54 6 File: GA 055-085- 2200.20 -2 V 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 12. ACCESS BY LESSOR (N) Upon 24 -hours prior written notice to COUNTY (voice -mail, or other form of voice - recorded messages are not considered prior notice), LESSOR and LESSOR's agents shall have the right to enter the Premises and the Facility during reasonable business hours forthe purpose of inspecting the same to ensure compliance with this Lease, so long as such entry does not unreasonably interfere with the COUNTY's operation of its Facility. Access to the Premises shall not be permitted without proper escort designated by the Communications Director. Except in the event of a life or property threatening emergency, LESSOR shall not access the Premises without prior written notice to the COUNTY. 13. LIENS (N) COUNTY shall not cause liens of any kind to be filed or placed against the Premises or Property, including without limitation, mechanics liens, liens for materials, wages, labor or services. If any liens are filed, and such liens are the result of any act, directive or action of COUNTY, its agents or employees, COUNTY shall upon receipt of written notice from LESSOR, at COUNTY s sole cost and expense, take whatever action(s) necessary to cause such lien to be satisfied and discharged or to cause any such lien to be removed of record. 14. UTILITIES (5.2 N) COUNTY shall be responsible for and pay all charges for all utilities supplied to the Premises and the initial utilities connection from the nearest available access point within the Property to its portion of the Equipment Building for the support of its 800 MHz System and Facility as shown in Exhibit B. Such charges for utility service shall be determined by a separate meter installed by COUNTY to monitor COUNTY's utility usage. 15. SIGNS (N) COUNTY agrees not to construct, maintain, or allow any signs, banners, flags, etc., upon the Property or Premises except as approved in writing by LESSOR, or as required by any governmental agency with jurisdiction for regulatory purposes. 16. INSURANCE (5.3 N) LESSOR Insurance: COUNTY. recognizes that LESSOR is self- insured and provides coverage through its self - insurance program. LESSOR will provide COUNTY with a letter of self insurance to verify liability coverage. COUNTY and LESSOR AGREE THAT LESSOR does not carry public liability or property damage insurance to compensate COUNTY or any other person from any loss, damage or injury except those resulting from situations where LESSOR would be legally liable for such loss, damage or injury. LESSOR agrees it shall self insure for a combined coverage of bodily injury and property damage in the amount of not less than One Million Dollars ($1,000,000). Prior to the Commencement Date of this Lease and upon renewal of such policies, LESSOR shall submit to COUNTY a suitable letter of self - insurance. Contractors Liability Insurance: All contractors, subcontractors and others performing work on behalf of LESSOR and /or COUNTY pursuant to this Lease shall obtain insurance in the form and amounts approved by the COUNTY and LESSOR Risk Managers, COUNTY's requirements for contractor's insurance are set forth in "Exhibit C" County Contractor's Insurance Requirements, is attached hereto and incorporated herein by this reference. LESSOR and COUNTY shall not allow contractors or subcontractors to work if contractors or File: GA 055485- 2200 -20-2 L.(: 2 4 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 subcontractors have less than the level of coverage required by the COUNTY and LESSOR Risk Managers. It is the obligation of LESSOR and COUNTY to provide notice of insurance requirements to every contractor and to receive proof of liability insurance coverage prior to allowing any contractor to begin work within the Premises. Such proof of insurance must be maintained by LESSOR and COUNTY through the entire term of this Lease and be available for inspection by LESSOR and COUNTY representatives at any reasonable time. The COUNTY and LESSOR shall be named as additional insureds on said policies. COUNTY Insurance LESSOR recognizes that the COUNTY is self- insured forgeneral liability including bodily injury and property damage, and provides coverage through its self - insurance program. COUNTY will provide LESSOR with a letter of self insurance to verify coverage in the amount of not less than One Million Dollars ($1,000,000). 17. LIMITATION OF LESSOR'S LIABILITY FOR COUNTY PERSONAL PROPERTY EXCEPT FOR THE SOLE OR WILLFUL MISCONDUCT OF THE LESSOR, ITS CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS, EMPLOYEES, AGENTS, AND ASSIGNS, AND AS A FURTHER CONSIDERATION FOR THE USE AND OCCUPANCY OFTHE PREMISES, COUNTYAGREES THAT LESSOR, ITS CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS, EMPLOYEES, AGENTS, AND ASSIGNS SHALL NOT BE LIABLE TO COUNTY, ITS CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES FOR ANY LOSS OR DAMAGE TO COUNTY PROPERTY, AS THE RESULT OF THE USE AND OCCUPANCY OF THE PREMISES. IT IS FURTHER AGREED THATANY STORED PROPERTY, PLACED ON OR IN THE PREMISES IS DONE SO AT COUNTY'S SOLE RISK, AND LESSOR, ITS CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS, EMPLOYEES, AGENTS, AND ASSIGNS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY LOSS OR DAMAGE TO SAID PROPERTY FROM ANY CAUSE WHATSOEVER, EXCEPT FORTHE SOLE NEGLIGENCE OR WILLFUL MISCONDUCTOF THE CITY, ITS CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS, EMPLOYEES, AGENTS. COUNTY ACKNOWLEDGES THAT LESSOR DOES NOT WARRANT OR REPRESENT THAT STORED PROPERTY AT THE PREMISES WILL BE SAFELY KEPT, NOR THAT IT WILL BE SECURE AGAINST THEFT NOR THAT THE PREMISES ARE SECURE AGAINST HAZARDS CAUSED BY THEFT, MYSTERIOUS DISAPPEARANCE, PESTS, WATER, FIRE, FLOOD OR THE ELEMENTS OF WEATHER OR EARTHQUAKE. IT IS AGREED BY COUNTY THAT THIS RELEASE OF LESSOR'S LIABILITY IS A BARGAINED FOR CONDITION OF THIS AGREEMENT, AND THAT WERE LESSOR NOT RELEASED FROM LIABILITY AS SET FORTH HERE, THE REIMBURSEMENT AGREEMENT WOULD HAVE REQUIRED ADDITIONAL CONTRIBUTION BY THE COUNTY AND /OR RENT WOULD HAVE BEEN REQUIRED UNDER THIS AGREEMENT. BY SIGNING THIS AGREEMENT, COUNTY ACKNOWLEDGES THAT COUNTY HAS READ, UNDERSTANDS AND AGREES TO THE TERMS OF PARAGRAPH 17. 18. INDEMNIFICATION (5.5 S) COUNTY shall defend, indemnify and save harmless LESSOR, its officers, agents, and employees, from and against any and all claims, demands, losses, or liabilities of any kind or nature which LESSOR, its officers, agents, and employees may sustain or incurorwhich may be imposed upon them for injury to or death of persons, or damage to property as a result of, or arising out of, the sole negligence of COUNTY, its officers, agents, employees, subtenants, invitees, or licensees, in connection with the occupancy and use of the Premises by COUNTY. File: GA 055485- 2200 -20 -2 �l 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 54 Likewise, LESSOR shall defend, indemnify and save harmless COUNTY, its officers, agents, and employees from and against any and all claims, demands, losses, or liabilities of any kind or nature which COUNTY, its officers, agents, and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property as a result of, or arising out of, the sole negligence of LESSOR, its officers, agents, employees, invitees, or licensees, in connection with the ownership, maintenance, or use of the Premises. 19. TAXES AND ASSESSMENTS (5.6 N) All taxes and assessments which become due and payable upon and which are directly attributable to the COUNTY's Facility upon the Premises shall be the full responsibility of COUNTY, and COU NTY shall cause said taxes and assessments to be paid prior to the due date. COUNTY shall pay all real property taxes and all other taxes, fees and assessments attributable to the Premises and this Lease. COUNTY, when possible, shall cause the Facility and any other personal property, fixtures, and /or equipment of COUNTY to be assessed and billed separately from the real property of LESSOR. 20. ASSIGNMENT AND SUBLEASE (N) COUNTY shall not assign this Lease or sublet the Premises or any part thereof without the prior written consent of LESSOR, which consent shall not be unreasonably withheld. COUNTY AND LESSOR agree that COUNTY shall not assign this Lease or sublet the Premises or any part thereof for a non - governmental use (i.e. commercial use). In the event COUNTY desires to assign this Lease or sublet the Premises or any part thereof, COUNTY shall deliver all documents relating to such assignment or sublease to LESSOR and LESSOR shall respond in writing within thirty (30) days after receipt of all documents relating to such assignment or sublease that it consents or does not consent to such assignment or sublease on the same terms as those proposed. Said consent by LESSOR shall not be unreasonably withheld. LESSOR's failure to respond within said time period shall be deemed an approval by LESSOR. In the event LESSOR consents to any proposed assignment contemplated hereunder, COUNTY shall have no further liability under this Lease from and after the effective date of such assignment. 21. SUBORDINATION, ATTORNMENT AND NON - DISTURBANCE (6.4 N) This Lease and all rights of the COUNTY hereunder are subject and subordinate to any indebtedness secured by the Property orthe Premises including but not limited to a mortgage or deed of trust ( "Indebtedness ") which does now or may hereafter cover the Premises orany interest of LESSOR therein, and to any and all advances made on the security thereof, and to any and all increases, renewals, modifications, consolidations, replacements and extensions of any such Indebtedness except, insofar as COUNTY is meeting its obligations under this Lease, any foreclosure of any Indebtedness shall not result in the termination of this Lease or the displacement of COUNTY. In the event of transfer of title of the Premises, including any proceedings brought for foreclosure or in the event of the exercise of the power of sale under any instrument securing an Indebtedness, or by any othertransfer of title covering the Premises, COUNTY shall attom to and recognize any subsequent title holder as the LESSOR under all terms, covenants and conditions of this Lease. COUNTY's possession of the Premises shall not be disturbed bythe LESSOR, or its successors in interest, and this Lease shall remain in full force and effect. Said attomment shall be effective and self -operative immediately upon succession of the 9 File: GA 055485- 2200 -20 -2 WI-61 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 54 current titleholder, or its successors in interest, to the interest of LESSOR under this Lease. Notwithstanding the above, this Lease is contingent upon LESSOR obtaining a Subordination, Attomment and Non - Disturbance Agreementfrom anycurrent lenders on the Premises, within thirty (30) days of LESSOR's execution of this Lease. LESSOR shall require all future lenders on the Premises, upon initiation of their interest in the Premises, to enter into a Subordination, Attomment and Non - Disturbance Agreementwith COUNTY, thereby insuring COUNTY of its leasehold interests in the Premises. Said Subordination, Attomment and Non - Disturbance Agreement shall be in the form of COUNTY's standard form Subordination, Attomment and Non - Disturbance Agreement or in a form approved by the Communications Director, or designee, Corporate Real Estate and County Counsel. Foreclosure shall not extinguish this Lease, and any lender or any third party purchasing the Premises at foreclosure sale shall do so subject to this Lease and shall thereafter perform all obligations and be responsible for all liabilities of the LESSOR under the terms of this Lease. 22. ESTOPPEL CERTIFICATE (6.5 S) COUNTY agrees that its Communications Director, ordesignee, shall furnish from time to time upon receipt of a written request from LESSOR orthe holderof any deed of trust or mortgage covering the Premises or any interest of LESSOR therein, COUNTY s standard form Estoppel Certificate containing information as to the current status of the Lease. The Estoppel Certificate shall be approved by the Communications Director, or designee, Corporate Real Estate, and County Counsel. 23. TOXIC MATERIALS (5.9 S) COUNTY hereby warrants and represents that COUNTY will comply with all laws and regulations relating to the storage, use and disposal of hydrocarbon substances and hazardous, toxic or radioactive matter, including, but not limited to, those materials identified in Title 26 of the California Code of Regulations (collectively "Toxic Materials "). COUNTY shall be responsible for and shall defend, indemnify and hold LESSOR, its officers, directors, employees, agents, and representatives, harmless from and against all claims, costs and liabilities, including attomeys' fees and costs arising out of or in connection with the storage, use, and disposal of Toxic Materials on the Premises by COUNTY. If the storage, use, and disposal of Toxic Materials on the Premises by COUNTY results in contamination or deterioration of water or soil resulting in a level of contamination greater than maximum allowable levels established by any governmental agency having jurisdiction over such contamination, COUNTY shall promptly take any and all action necessary to clean up such contamination. Likewise, LESSOR hereby warrants and represents that LESSOR has in the past and will hereafter comply with all laws and regulations relating to the storage, use and disposal of hydrocarbon substances and hazardous , toxic or radioactive matter, including, but not limited to, those materials identified in Title 26 of the California Code of Regulations (collectively "Toxic Materials "). LESSOR shall be responsible for and shall defend, indemnify and hold COUNTY, its officers, directors, employees, agents, and representatives, harmless from and against all claims, costs and liabilities, including attomeys' fees and costs arising out of or in connection with the previous, current and future storage, use and disposal of Toxic Materials on the Premises (or building if the premises comprises only a portion of said building) by LESSOR. If the previous, current and future storage, use, and disposal of Toxic Materials on the Premises by LESSOR results in contamination or deterioration of water or soil resulting in a level of contamination greater than maximum allowable levels established by any governmental agency having jurisdiction over such contamination, LESSOR shall promptly 10 File: GA 055-085- 2200 -20 -2 2—� 2 4 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 take any and all action necessary to clean up such contamination. 24. DEFAULTS AND REMEDIES (6.8 N) The occurrence of a failure to perform any obligation, agreement or covenant under this Lease shall constitute an event of default. In the event of any breach of this Lease by COUNTY, LESSOR shall notify COUNTY in writing of such breach and COUNTY shall have thirty (30) days in which to initiate action to cure said breach. COUNTY understands that time is of the essence and will work diligently to cure any breach. In the event of any breach of this Lease by LESSOR, COUNTY shall notify LESSOR in writing of such breach and LESSOR shall have thirty (30) days in which to initiate action to cure said breach. LESSOR understands that time is of the essence and will work diligently to cure any breach. COUNTY and LESSOR shall have the right to pursue all remedies available under the law. 25. DISPUTES (N) In the event a dispute relating to this Lease shall arise between the parties to this Lease, the COUNTY and LESSOR shall first attempt to resolve the dispute informally through good faith negotiation. If the dispute is not resolved by negotiation within a reasonable period of time, it is hereby agreed that the dispute shall be referred to a neutral unbiased party agreed to in writing by COUNTY and LESSOR for mediation. The COUNTY and LESSOR further agree that their participation in mediation is a condition precedent to any party pursuing any other available remedy in relation to the dispute. Either party to the dispute may give written notice to the other party of its desire to commence the mediation process, and a mediation session shall take place within thirty (30) days after the date that such notice is given, or at such other time as mutually agreed upon in writing by COUNTY and LESSOR. The mediator shall determine the mediation process. The parties further agree to share equally the costs of the mediation, which costs shall not include costs incurred by either party for representation by counsel in the mediation process. 26. AUTHORITY (N) LESSOR and LESSOR's signatories represent that the signatories to this Lease hold the positions set forth below their signatures and that the signatories are authorized to execute this Lease on behalf of LESSOR and to bind LESSOR hereto. 27. RECITALS (N) The Recitals paragraphs above are hereby incorporated in this Lease by this reference. 28. NOTICES (8.1 S) All notices pursuant to this Lease shall be addressed as set forth below or as either party may hereafter designate by written notice and shall be deemed delivered upon personal delivery, delivery via fax machine, or seventy -two (72) hours after deposit in the United States Mail. 11 File: GA 055485- 2200 -20.2 2 e 12 14 16 18 20 22 24 26 TO: LESSOR City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 Attn: Utility Services Director and City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 Attn: City Attorney TO: COUNTY Sheriff - Coroner Department Communications Division 840 N. Eckhoff St., Suite 104 Orange, CA 92868 -1021 Attn: Communications Director and Sheriff Real Property Services 320 N. Flower Street, Ste. 108 Santa Ana, Ca. 92703 Attn: Real Property Agent 29. ATTACHMENTS (9.2 S) This Lease includes the following, which are attached hereto and made a part hereof: I. GENERAL CONDITIONS 11. EXHIBITS A. Description — Property B. Site Plan — Premises C. County Contractor's Insurance Requirements rr ri rr 12 File: GA 055 -485- 2200 -20 -2 a�; 2 4 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 42 IN WITNESS WHEREOF, the parties have executed this Lease the day and year first above written. COUNTY APPROVED AS TO FORM: County Counsel M Deputy Date: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF BOARD OF SUPERVISORS ATTEST: DARLENE J. BLOOM Clerk of the Board of Supervisors of Orange County, California COUNTY OF ORANGE Chairman, Board of Supervisors LESSOR APPROVED AS TO FORM: City Attorney Bv: Assistant City Attomey Date: CITY OF NEWPORT BEACH M- Mayor ATTEST: M CityClerk 13 File: GA 055455-2200 -20-2 a, Project No.: GA 055 -485- 2200 -20 -2 2 Project Name: 800 MHZ Communications Site (Lease) Project Location: City of Newport Beach 4 City Utilities Department Yard 6 GENERAL CONDITIONS 8 1. LEASE ORGANIZATION (9.1 S) 10 The various headings in this Lease, the numbers thereof, and the organization of the 12 Lease into separate sections and paragraphs are for purposes of convenience only and shall not be considered otherwise. 14 2. INSPECTION (9.2 S) 16 LESSOR or his authorized representative shall have the right at all reasonable times and 18 upon reasonable advance notice to COUNTY to inspect the Premises to determine, if COUNTY is complying with all the provisions of this Lease. 20 3. SUCCESSORS IN INTEREST (9.3 S) 22 Unless otherwise provided in this Lease, the terms, covenants, and conditions contained 24 herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all of whom shall be jointly and severally liable 26 hereunder. 28 4. DESTRUCTION OR DAMAGE TO PREMISES (9.4 N) 30 "Partial Destruction" of the Premises shall mean damage or destruction to the Premises or Tower, for which the repair cost is less than twenty-five percent (25 %) of the 32 then replacement cost of the Premises or Tower, excluding the value of the land. 34 "Total Destruction" of the Premises shall mean damage or destruction to the Premises or Tower, for which the repair cost is twenty -five percent (25 %) or more of the then 36 replacement cost of the Premises or Tower, excluding the value of the land. 38 Partial Destruction 40 In the event of a Partial Destruction of the Premises or Tower, LESSOR shall immediately pursue completion of all repairs necessary to restore the Premises 42 or Tower to the condition which existed immediately prior to said Partial Destruction. Said restoration work (including any demolition required) shall be 44 completed by LESSOR, at LESSOR's sole cost and expense, unless the Partial Destruction of the Premises or Tower was caused by COUNTY in which event 46 the COUNTY shall be solely liable for said cost and expense, within ninety (90) days of the occurrence of said Partial Destruction or within an extended time 48 frame as may be authorized, in writing, by COUNTY. The Partial Destruction of the Premises or Tower shall in no way render this Lease null and void. Should 50 LESSOR fail to complete necessary repairs, for any reason, within ninety (90) Page 1 of 3 -z -1 days, or other time frame as may be authorized by COUNTY, COUNTY may, at 2 COUNTY's sole option, terminate the Lease or complete necessary repair work. 4 Total Destruction 6 A. In the event of Total Destruction of the Equipment Building or the Premises (excluding the Tower) being legally declared unsafe or unfit for use or .8 occupancy, this Lease shall in no way be rendered null and void and LESSOR shall immediately instigate action to rebuild or make repairs, as necessary, to 10 restore the Premises (including replacement of all tenant improvements) to the condition which existed immediately prior to the destruction. In the event 12 LESSOR refuses to diligently pursue or is unable to restore the Premises to an useable and occupiable condition (including replacement of all tenant 14 improvements) within 180 days of the occurrence of said destruction or within an extended time frame as may be authorized, in writing, by COUNTY, COUNTY 16 may, at COUNTY's sole option, terminate this Lease or complete the restoration. 18 B. In the event of Total Destruction of the Tower to the extent that COUNTY's operation of its 800 MHz System is not reasonably possible, or the Tower being 20 legally declared unsafe or unfit for its use as provided in this Lease, this Lease shall be terminated and of no further force and effect. 22 5. AMENDMENT (9.5 S) 24 The Reimbursement Agreement and this Lease sets forth the entire agreement between 26 LESSOR and COUNTY and any modification must be in the forth of a written amendment. 28 6. PARTIAL INVALIDITY (9.6 S) 30 If any term, covenant, condition, or provision of this Lease is held by a court of 32 competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, 34 impaired, or invalidated thereby. 36 7. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (9.7 S) 38 If either party hereto shall be delayed or prevented from the performance of any act required hereunder by reason of acts of God, performance of such act shall be excused 40 for the period of the delay; and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Financial inability shall not 42 be considered a circumstance excusing performance under this Lease. 44 8. WAIVER OF RIGHTS (9.9 S) 46 The failure of LESSOR or COUNTY to insist upon strict performance of any of the terms, conditions, and covenants in this Lease shall not be deemed a waiver of any right or 48 remedy that LESSOR or COUNTY may have, and shall not be deemed a waiver of any right or remedy for a subsequent breach or default of the terms, conditions, and 50 covenants herein contained. Page 2 of 3 a8 10 12 14 16 18 20 22 24 9. HOLDING OVER (9.10 S) In the event COUNTY shall continue in possession of the Premises after the term of this Lease, such possession shall not be considered a renewal of this Lease but a tenancy from month to month and shall be governed by the conditions and covenants contained in this Lease. 10. QUIET ENJOYMENT (9.13 S) LESSOR agrees that, subject to the terms, covenants and conditions of this Lease, COUNTY may, upon observing and complying with all terms, covenants and conditions of this Lease, peaceably and quietly occupy the Premises. 11, GOVERNING LAW AND VENUE (9.16 S) This agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure section 394. 12. TIME (9.17 S) Time is of the essence of this Lease. Page 3 of 3 PXI EQUIPMENT EQUIPMENT ROOM #R -2 ROOM #R -1 �1 ;�TEN� \. G NERATgR �� II i TR NS. ELECT. DIST ROOM I Project Nu. GA 0.55- 485 - 2200 -20 -2 CCCS 800 MHZ Communications Site County of Orange & City of Newport Beach EXHIBIT B (page I of 2) Newport Beach Cite Utilities Yard Lease —Site Plan 949 W. 16'h Street Premises u, C Cl 320' A 300' C 280' 260' 240' 180' 120' 70' 60' ANTENNA DATA A COUNTY 800 MHz CCCS Rx B COUNTY 800 MHz CCCS Tx C COUNTY 800 MHz CCCS Tx D COUNTY 800 MHz CCCS 6' HP MICROWAVE ANTENNA 104 DEG, AZIMUTH NOTE #1 40' -70' COUNTY OF INDICATED BY ORANGE HIGHLIGHTED EXCLUSIVE AREA USE AREA NOTE #2 260' -320' COUNTY OF INDICATED BY ORANGE HIGHLIGHTED EXCLUSIEVE AREA USE AREA 40 Project No. GA 055 -485- 2200 -20 -2 CCCS 800 WIZ Communications Site County of Orange & City of Newport Beach EXHI=(pagc Newport Beach City Utilities Yard - 'rower Le949 W. l6'h Street g; Project No.: GA 055 - 485 - 2200 -20 -2 Project Name: 800MHz Communications Site (Lease) Project Location: City of Newport Beach City Utilities Yard Contractor's Insurance Requirements Exhibit C Prior to the provision of services under this contract or payment therefore, the contractor agrees to purchase all required insurance at contractor's expense and to deposit with the COUNTY certificates of insurance, including all endorsements required herein, necessary to satisfy the COUNTY that the insurance provisions of this contract have been complied with and to keep such insurance coverage and the certificates and endorsements therefore on deposit with the COUNTY during the entire term of this contract. In addition, all subcontractors performing work on behalf of contractor pursuant to this contract shall obtain insurance subject to the same terms and conditions as set forth herein for contractor. Contractor shall not allow subcontractors to work if subcontractors have less than the level of coverage required by the COUNTY from the contractor under this contract. It is the obligation of the contractor to provide notice of the insurance requirements to every subcontractor, and to receive proof of insurance prior to allowing any subcontractor to begin work. Such proof of insurance must be maintained by contractor through the entirety of the project for inspection by COUNTY representative at any reasonable time. All insurance policies required by this contract shall declare any deductible or self- insured retention (SIR). The maximum deductible or SIR amount shall be $25,000 for general liability and $5,000 for automobile liability. The contractor shall be responsible for reimbursement of any deductible to the insurer. Any self - insured retentions (SIRs) or deductibles shall be clearly stated on the Certificate of Insurance. If the contractor fails to maintain insurance acceptable to the COUNTY for the full term of this contract, the COUNTY may terminate this contract. Qualified Insurer The policy or policies of insurance must be issued by an insurer licensed to do business in the state of California (California Admitted Carrier). Minimum insurance company ratings as determined by the most current edition of the Best's Key Rating Guide /Property- Casualty /United States or ambest.com shall be A- (Secure Best's Rating) and VIII (Financial Size Category). If the carrier is a non - admitted carrier in the state of California, CEO /Office of Risk Management retains the right to approve or reject carrier after a review of the companys performance and financial ratings. The policy or policies of insurance maintained by the Contractor shall provide the minimum limits and coverage as set forth below: Coverage Minimum Limits Commercial General Liability including broad $1,000,000 combined single form property damage, operations, products, limit per occurrence completed operations, contractual liability, $2,000,000 aggregate and XCU (explosion, collapse and underground property damage hazards) Automobile Liability including coverage $1,000,000 combined for owned, non -owned and hired vehicles single limit per occurrence Workers' Compensation Statutory Employers' Liability Insurance $1,000,000 per occurence Builder's Risk Policy When required, as specified below All liability insurance required by this contract shall be at least $1,000,000 combined single limit per occurrence. The minimum General Aggregate limit for the Commercial General Liability policy shall be $2,000,000. The minimum aggregate limit for the completed operations shall be $1,000,000. The City of Newport Beach and County of Orange shall be added as an additional insured on all insurance policies required by this contract with respect to work done by the contractor under the terms of this contract (except Workers' Compensation /Employers' Liability). An additional insured endorsement evidencing that the City of Newport Beach and County of Orange are an additional insured shall accompany the Certificate of Insurance. The inclusion of the City of Newport Beach and County of Orange as an additional insured shall not affect any right which such organizations would have as a claimant if not so included. All insurance policies required by this contract shall be primary insurance, and any insurance maintained by the City of Newport Beach and County of Orange shall be excess and non - contributing with insurance provided by these policies. An endorsement evidencing that the contractor's insurance is primary and non- �u contributing shall specifically accompany the Certificate of Insurance for the Commercial General Liability. All insurance policies required by this contract shall give the County of Orange 30 days notice in the event of cancellation. This shall be evidenced by an endorsement separate from the Certificate of Insurance. In addition, the cancellation clause must include language as follows, which edits the pre - printed ACORD certificate: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL €NJ3€AVR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. 91JT FAILURE TO M !L SUCH NOTICE SHALL inkE NO OBLIGATION OR LIABII=!P( ^—OANY KIND UPON —TTHF COMPANY, ITS OR REPRESENW1 i All insurance policies required by this contract shall waive all rights of subrogation against the CITY and County of Orange and members of the Board of Supervisors, its elected and appointed officials, officers, agents and employees when acting within the scope of their appointment or employment. The Commercial General Liability policy shall contain a severability of interests clause. The Contractor is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Workers' Compensation or be self- insured in accordance with provisions of that code. The contractor will comply with such provisions and shall furnish the COUNTY satisfactory evidence that the contractor has secured, for the period of this contract, statutory Workers' Compensation insurance and Employers' Liability insurance with minimum limits of $1,000,000 per occurrence. The Contractor shall secure and maintain a Builder's Risk policy upon the entire work for new construction amounting to 100 percent of the insurable value of the work. A Builder's Risk policy shall also be required for additions to existing buildings /structures, or major alterations to existing buildings /structures. A Loss Payee endorsement must name the County of Orange as the Loss Payee. The contractor shall be responsible for securing and maintaining appropriate insurance on any tool, equipment or supply which is expected to remain his property. Insurance certificates and endorsements should be forwarded to the agency /department address listed on the contract documents. 3 3f If the contractor fails to provide the insurance certificates and endorsements within seven business days of notification, award may be made to the next qualified contractor. COUNTY expressly retains the right to require Contractor to increase or decrease insurance of any of the above insurance types throughout the term of this Contract. Any increase or decrease in insurance will be as deemed by County of Orange Risk Manager as appropriate to adequately protect COUNTY. COUNTY shall notify Contractor in writing of changes in the insurance requirements. If Contractor does not deposit copies of acceptable certificates of insurance and endorsements with COUNTY incorporating such changes within thirty days of receipt of such notice, this Contract may be in breach without further notice to Contractor, and COUNTY shall be entitled to all legal remedies. The procuring of such required policy or policies of insurance shall not be construed to limit Contractor's liability hereunder nor to fulfill the indemnification provisions and requirements of this Contract. The County of Orange Certificate of Insurance and the Special Endorsement for the County of Orange can be utilized to verify compliance with the above - mentioned insurance requirements in place of commercial insurance certificates and endorsements. El C' of Newport Beach BUDGET AMENDMENT 2006 -07 EFFECT ON BUDGETARY FUND BALANCE: X Increase Revenue Estimates X Increase Expenditure Appropriations AND �X Transfer Budget Appropriations SOURCE: from existing budget appropriations X from additional estimated revenues X from unappropriated fund balance EXPLANATION: NO. BA- 07BA -062 AMOUNT: $339,770.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To increase revenue estimates and expenditure appropriations to enter Lo rei ursemant agreement and long-term lease with the County of Orange to upgrade an existing radio communic er and provide enhanced communications for the Police and Fire Departments. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 010 3605 General Fund - 500 3605 Water Enterpr I 530 3605 Sewer Erd ; REVENUE ESTIMATES (3601) Fund /Division Account 250 4913 EXPENDITURE APPROPRIATIONS Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: Signed: Signed: C51 701 Radio Tower Amount Debit Credit ante $59,136.00 * Fund Balance $29,567.00 * Fund Balance $29,567.00 * stribution & Piping County Radio Tower. Sewer Main Replacement County Radio Tower Contributions County Radio Tower Administrative Services Director City Council Approval: City Clerk $221,500.00 $59,136.00 $29,567.00 $29,567.00 $221,500.00 7 ' e�7 / Date 7� ate Date