HomeMy WebLinkAboutC-3928 - Reimbursement Agreement (for Radio Communication Tower: 949 West 16th Street)v
Project No: GA 055-485-2200-20-2
` Project Name: 800 MHz Communications Site
U Project Location: City of Newport Beach — 949 West 16t" Street
City Utilities Department Yard
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ("Agreement") is made thiQo lay 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:
1. 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.
1
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).
3. 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
2
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.
3
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(13) 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.
7. 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.
0
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 a 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.
W
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
2
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
7
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: A
Deputy
Date: 11
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
BOARD OF SUPERVISORS
ATTEST:
ARLENE J. BLOOM
Clerk of the Board of Supervisors
of Orange County, California
COUNTY OF ORANGE
Chairman, Board of Supe rs
CITY
APPROVED AS TO FORM:
City Attorney
By:
�, 0�
Assistant City Attorney
� At
Date. I — 72
CITY OF NEWPORT BEACH
By.
Mayor
ATTEST:
By: g
City Clerk
Project No: GA 055-485-2200-20-2
2 Project Name: 800 MHz Communications Site
Project Location: City of Newport Beach — 949 West 16th Street
4 City Utilities Department Yard
6
EXHIBIT 2
8
10 LEASE
12 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
14 referred to as "COUNTY," and the CITY OF NEWPORT BEACH, a municipal corporation,
hereinafter referred to as "LESSOR."
16
RECITALS
18
A. LESSOR is the owner of that certain real property ("Property") located at 949 West 16th
20 Street in the City of Newport Beach, County of Orange, State of California. A depiction of
22 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
24 operations yard.
26 C. On 2007, LESSOR and COUNTY entered into a Reimbursement
Agreement, which this Lease is an Exhibit to, whereby LESSOR agreed to upgrade an
28 existing LESSOR owned communications tower ("Tower") and construct a new equipment
building ("Equipment Building") on the Property at shared expense with COUNTY. The
30 Reimbursement Agreement is incorporated herein by this reference.
32 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,
34 repairing and altering COUNTY's 800 MHz radio mobile/wireless communications system
and appurtenant equipment ("800 MHZ System").
36
In consideration of which, and the other considerations hereinafter set forth, the parties hereto
38 mutually agree as follows:
40 1. DEFINITIONS (1.2 S)
42 "Board of Supervisors" means the Board of Supervisors of the County of Orange, a political
subdivision of the State of California.
44
"Sheriff' means the Sheriff of the County of Orange, or designee, or upon written notice to
46 LESSOR, such person or entity as shall be designated by the Board of Supervisors.
48 "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
50 designated by the Sheriff -Coroner.
52 "County Counsel" means the County Counsel, County of Orange, or designee, or upon written
File: GA 055-485-2200-20-2
notice to LESSOR, such other person or entity as shall be designated by the County
2 Executive Officer or the Board of Supervisors.
4 "Corporate Real Estate" means the Resources Development and Management Department,
Internal Services, Real Estate Division, Corporate Real Estate for the County of Orange, or
6 upon written notice to LESSOR, such entity as shall be designated by the County Executive
8 Officer or the Director, Resources Development and Management Department.
2. PREMISES (1.3 N)
10
As provided in this section, LESSOR leases to COUNTY that certain real property hereinafter
12 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
14 designated on Exhibit B, page 1) and the exterior area of the Equipment Building where the
COUNTY's diesel generator and diesel fuel storage tank are located (as designated on Exhibit
16 B, page 1). Exhibit B is attached hereto and incorporated herein by this reference. The
parties hereto agree that: (i) sidewalk areas depicted on Exhibit B, page 1, shall be jointly
18 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
20 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
22 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
24 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
26 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.
28
COUNTY, at its sole cost and expense, shall be responsible for the installation, operation and
30 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
32 activities on or within its occupied portion of the Property.
34 3. ACCESS (N)
36 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
38 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
40 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
42 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
44 facilities, connections and other utilities as needed to service COUNTY's 800 MHz System
and Facility.
46
LESSOR agrees that COUNTY shall have access to the Property and Premises on a twenty-
48 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
50 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.
52
COUNTY shall provide, at its sole expense, all security provisions it deems necessary to
54 protect its Facility and the Premises.
2 File: GA 055-485-2200-20-2
2 COUNTY shall comply with all fire and safety codes and shall not obstruct access of
emergency vehicles to and within the Property.
4
4. USE (2.1 N)
6
COUNTY Use:
8
The Premises shall only be used by COUNTY during the term of this Lease for a
10 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
12 appurtenant structures including, without limitation, the installation of an exclusive use
communications equipment room, emergency diesel generator, diesel fuel storage tank, auto
14 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
16 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.
18
Permits, Licenses, Approvals:
20
LESSOR agrees to reasonably cooperate with COUNTY, at COUNTY's sole cost and
22 expense, in making application for and obtaining all licenses, permits, and any and all other
necessary approvals that may be required for COUNTY's use of the Premises.
24
Representatives:
26
LESSOR and COUNTY shall each identify to the other party a representative as a point of
28 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
30 COUNTY personnel knowledgeable about the Property and the Premises and the operation
and maintenance of the respective communications systems.
32
Use By Third Parties:
34
Prior to the authorization by LESSOR to any third -party to install any communications
36 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
38 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
40 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
42 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
44 deemed to be approval by the COUNTY.
46 Alteration By LESSOR/COUNTY:
48 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
50 modify any improvement within the Premises without the prior written approval of LESSOR.
52 5. MUTUAL NON-INTERFERENCE (N)
54 Upon activation of the COUNTY communications equipment, COUNTY shall confirm, at
3 File: GA 055-485-2200-20-2
COUNTY's sole cost and expense, that COUNTY's radio equipment is not interfering with
2 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
4 accommodate COUNTY's operation of its Facility and 800 MHz System, shall be at
COUNTY's sole cost and expense and shall be completed priorto the COUNTY's operation of
6 the Facility and 800 MHz System.
8 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
10 shall operate its radio communications system and other activities on the Property in a manner
so as not to interfere with COUNTY's use of the Premises and its Facility. All operations by
12 LESSOR and COUNTY shall be lawful and in compliance with all Federal Communications
Commission ("FCC") requirements and State and local codes and ordinances.
14
LESSOR and COUNTY agree to reasonably cooperate with each other to prevent and
16 mitigate any interference with each other's facilities and equipment and use of the Premises
and Property.
18
Notwithstanding the provisions of Clause 4, Use, herein, LESSOR shall not permit any third
20 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
22 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
24 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
26 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
28 the satisfaction of the Communications Director.
30 6. TERM (2.2A S)
32 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
34 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
36 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.
38
7. OPTION TO TERMINATE LEASE (2.4 N)
40
COUNTY shall have the option, at its sole discretion, to terminate this Lease at any time and
42 for any reason upon giving LESSOR written notice at least sixty (60) days prior to said
termination date.
44
LESSOR shall have the option, at its sole discretion, to terminate this Lease by providing the
46 COUNTY with sixty (60) days written notice of the termination date if: (i) the 800 MHz System,
and or an approved successor or assign, fail to operate the 800 MHz System for twelve (12)
48 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
50 Premises.
52 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
54 including all personal property, and repair the Premises pursuant to Clause 9, Construction
4 File: GA 055-485-2200-20-2
and Alterations, of this Lease.
2
8. RENT (N)
4
This Lease shall be rent-free to the COUNTY for the duration of the Lease term and any
6 extension thereof.
8 9. CONSTRUCTION AND ALTERATIONS (4.4 N)
10 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
12 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
14 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
16 switch, air conditioning, emergency diesel generator, diesel fuel tank, fixtures, partitions,
counters, shelving, and other ancillary equipment as deemed necessary or appropriate. Prior
18 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 COUNTY's plans and
20 specifications for COUNTY's work, which approval shall not be unreasonably withheld or
conditioned. LESSOR shall give such approval or provide COUNTY with its requests for
22 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
24 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
26 condition in a timely manner.
28 It is agreed that any such communications equipment, appurtenant structures, auto transfer
switch, air conditioning, emergency diesel generator, diesel fuel tank, fixtures, partitions,
30 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
32 shall remove, at COUNTY's 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,
34 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.
36
10. REPAIR AND MAINTENANCE (5.1 N)
38
LESSOR Obligations:
40
LESSOR shall maintain, in good condition and repair and at its sole expense, the Tower and
42 the foundation, all structural components, roof, exterior walls and drainage systems of the
Equipment Building. LESSOR shall ensure COUNTY's access to its Premises is
44 unobstructed. LESSOR shall keep the area immediately surrounding the Tower and
Equipment Building unobstructed, and free and clear of rubbish and litter.
46
LESSOR shall, at all times during the term of this Lease and at its sole expense, maintain in
48 good operating condition all Federal Aviation Administration ("FAA") required Tower lighting
and markings. LESSOR shall additionally be responsible for providing any FAA required
50 lighting outage notifications and complying with all current and future FAA requirements
relating to the Tower.
52
54
5 File: GA 055-485-2200-20-2
COUNTY Obligations:
2
COUNTY expressly agrees to maintain the Premises in a safe, clean, wholesome, sanitary
4 condition and in compliance with all applicable laws. COUNTY, at its sole cost and expense,
shall maintain in good condition and repair the Premises, the 800 MHz System, its Facility,
6 and its portion of the Equipment Building including interior walls, floor, ceiling, all wiring,
plumbing and utility connections, the diesel generator, auto transfer switch, fuel tank and fuel
8 storage area. COUNTY also agrees to install any necessary materials or devices to protect its
equipment and facilities installed in the Equipment Building from temporary leaks in the roof
10 that may occur so that the COUNTY's equipment and facilities are not damaged. The
COUNTY agrees to immediately notify the LESSOR of any condition caused by the LESSOR
12 or that LESSOR is responsible for that COUNTY believes may cause damage to the
COUNTY's Facility and/or equipment installed in the Equipment Building so that the LESSOR
14 can take any required action.
16 Air Conditioninq Maintenance:
18 LESSOR and COUNTY shall each be responsible for the maintenance, servicing and repair of
their respective separate air conditioning systems and the cost and expense thereof.
20
11. TOWER WORK (N)
22
Any contractor or other party performing work on the Tower shall comply with all safety and
24 hourly requirements for employees, in accordance with Federal, State and local governmental
safety and health regulations, and laws as well as reasonable security measures required by
26 LESSOR.
28 Contractors shall assure that all Tower workers and supervisors are trained and currently
certified tower climbers, using all required climbing safety equipment. The contractor shall
30 utilize a program of regular climbing apparatus testing. Proof of current certification and
documentation of compliance and testing for each employee shall be submitted to the
32 COUNTY and LESSOR.
34 Contactors shall assure that all Tower workers and supervisors are trained in EME Safety
compliance and possess RF Safety dosimeter monitoring devices. These devices shall be
36 operated when working on the Tower. No Tower work shall be performed without the
presence of a contractor provided safety person on the Premises. Where necessary,
38 COUNTY and LESSOR operated transmitters shall be turned off to meet FCC EME Safety
and occupational regulations for tower workers.
40
Contractor's on -site safety person shall be trained and currently certified in first aid and Cardio
42 Pulmonary Resuscitation (CPR), and maintain an industrial first aid kit in their vehicles at all
times.
44
COUNTY and LESSOR agree that all Tower work contractors, climbers and others involved
46 in Tower work shall be required to have insurance coverage in a form and amount as is
deemed necessary by the COUNTY and LESSORS Risk Managers to adequately protect
48 COUNTY and LESSOR, and who shall be named as additional insureds. COUNTY and
LESSOR Risk Managers approval shall be required prior to any work being performed on the
50 Tower.
52 12. ACCESS BY LESSOR (N)
54 Upon 24-hours prior written notice to COUNTY (voice -mail, or other form of voice -recorded
6 File: GA 055-485-2200-20-2
messages are not considered prior notice), LESSOR and LESSOR's agents shall have the
2 right to enter the Premises and the Facility during reasonable business hours for the purpose
of inspecting the same to ensure compliance with this Lease, so long as such entry does not
4 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.
6 Except in the event of a life or property threatening emergency, LESSOR shall not access the
Premises without prior written notice to the COUNTY.
8
13. LIENS (N)
10
COUNTY shall not cause liens of any kind to be filed or placed against the Premises or
12 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
14 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
16 such lien to be satisfied and discharged or to cause any such lien to be removed of record.
18 14. UTILITIES (5.2 N)
20 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
22 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
24 installed by COUNTY to monitor COUNTY's utility usage.
26 15. SIGNS (N)
28 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
30 governmental agency with jurisdiction for regulatory purposes.
32 16. INSURANCE (5.3 N)
34 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
36 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
38 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
40 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
42 upon renewal of such policies, LESSOR shall submit to COUNTY a suitable letter of self-
insurance.
44
Contractors Liability Insurance: All contractors, subcontractors and others performing work on
46 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
48 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.
50 LESSOR and COUNTY shall not allow contractors or subcontractors to work if contractors or
subcontractors have less than the level of coverage required by the COUNTY and LESSOR
52 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
7 File: GA 055-485-2200-20-2
allowing any contractor to begin work within the Premises. Such proof of insurance must be
2 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
4 COUNTY and LESSOR shall be named as additional insureds on said poilicies.
6 COUNTY Insurance LESSOR recognizes that the COUNTY is self -insured for general liability
including bodily injury and property damage, and provides coverage through its self-insurance
8 program. COUNTY will provide LESSOR with a letter of self insurance to verify coverage in
10 the amount of not less than One Million Dollars ($1,000,000).
17. LIMITATION OF LESSOR'S LIABILITY FOR COUNTY PERSONAL PROPERTY
12
EXCEPT FOR THE SOLE OR WILLFUL MISCONDUCT OF THE LESSOR, ITS CITY
14 COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS,
EMPLOYEES, AGENTS, AND ASSIGNS, AND AS A FURTHER CONSIDERATION FOR
16 THE USE AND OCCUPANCY OF THE PREMISES, COUNTY AGREES THAT LESSOR, ITS
CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS,
18 EMPLOYEES, AGENTS, AND ASSIGNS SHALL NOT BE LIABLE TO COUNTY, ITS
CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES FOR ANY LOSS OR
20 DAMAGE TO COUNTY PROPERTY, AS THE RESULT OF THE USE AND OCCUPANCY
OF THE PREMISES. IT IS FURTHER AGREED THAT ANY STORED PROPERTY, PLACED
22 ON OR IN THE PREMISES IS DONE SO AT COUNTY'S SOLE RISK, AND LESSOR, ITS
CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS,
24 EMPLOYEES, AGENTS, AND ASSIGNS SHALL HAVE NO RESPONSIBILITY OR
LIABILITY FOR ANY LOSS OR DAMAGE TO SAID PROPERTY FROM ANY CAUSE
26 WHATSOEVER, EXCEPT FOR THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF
THE CITY, ITS CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS,
28 OFFICIALS, EMPLOYEES, AGENTS. COUNTY ACKNOWLEDGES THAT LESSOR DOES
NOT WARRANT OR REPRESENT THAT STORED PROPERTY AT THE PREMISES WILL
30 BE SAFELY KEPT, NOR THAT IT WILL BE SECURE AGAINST THEFT NOR THAT THE
PREMISES ARE SECURE AGAINST HAZARDS CAUSED BY THEFT, MYSTERIOUS
32 DISAPPEARANCE, PESTS, WATER, FIRE, FLOOD OR THE ELEMENTS OF WEATHER
OR EARTHQUAKE. IT IS AGREED BY COUNTY THAT THIS RELEASE OF LESSOR'S
34 LIABILITY IS A BARGAINED FOR CONDITION OF THIS AGREEMENT, AND THAT WERE
LESSOR NOT RELEASED FROM LIABILITY AS SET FORTH HERE, THE
36 REIMBURSEMENT AGREEMENT WOULD HAVE REQUIRED ADDITIONAL
CONTRIBUTION BY THE COUNTY AND/OR RENT WOULD HAVE BEEN REQUIRED
38 UNDER THIS AGREEMENT. BY SIGNING THIS AGREEMENT, COUNTY
ACKNOWLEDGES THAT COUNTY HAS READ, UNDERSTANDS AND AGREES TO THE
40 TERMS OF PARAGRAPH 17.
42 18. INDEMNIFICATION (5.5 S)
44 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
46 nature which LESSOR, its officers, agents, and employees may sustain or incur orwhich may
be imposed upon them for injury to or death of persons, or damage to property as a result of,
48 or arising out of, the sole negligence of COUNTY, its officers, agents, employees, subtenants,
50 invitees, or licensees, in connection with the occupancy and use of the Premises by COUNTY.
Likewise, LESSOR shall defend, indemnify and save harmless COUNTY, its officers, agents,
52 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
8 File: GA 055-485-2200-20-2
may be imposed upon them for injury to or death of persons, or damage to property as a result
2 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.
4
19. TAXES AND ASSESSMENTS (5.6 N)
6
All taxes and assessments which become due and payable upon and which are directly
8 attributable to the COUNTY's Facility upon the Premises shall be the full responsibility of
COUNTY, and COUNTY shall cause said taxes and assessments to be paid prior to the due
10 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
12 and any other personal property, fixtures, and/or equipment of COUNTY to be assessed and
billed separately from the real property of LESSOR.
14
20. ASSIGNMENT AND SUBLEASE (N)
16
COUNTY shall not assign this Lease or sublet the Premises or any part thereof without the
18 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
20 Premises or any part thereof for a non -governmental use (i.e. commercial use).
22 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
24 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
26 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
28 an approval by LESSOR.
30 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
32 such assignment.
34 21. SUBORDINATION, ATTORNMENT AND NON -DISTURBANCE (6.4 N)
36 This Lease and all rights of the COUNTY hereunder are subject and subordinate to any
indebtedness secured by the Property or the Premises including but not limited to a mortgage
38 or deed of trust ("Indebtedness") which does now or may hereafter cover the Premises or any
interest of LESSOR therein, and to any and all advances made on the security thereof, and to
40 any and all increases, renewals, modifications, consolidations, replacements and extensions
of any such Indebtedness except, insofar as COUNTY is meeting its obligations under this
42 Lease, any foreclosure of any Indebtedness shall not result in the termination of this Lease or
the displacement of COUNTY.
44
In the event of transfer of title of the Premises, including any proceedings brought for
46 foreclosure or in the event of the exercise of the power of sale under any instrument securing
an Indebtedness, or by any other transfer of title covering the Premises, COUNTY shall attorn
48 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 by the
50 LESSOR, or its successors in interest, and this Lease shall remain in full force and effect.
Said attornment shall be effective and self -operative immediately upon succession of the
52 current titleholder, or its successors in interest, to the interest of LESSOR under this Lease.
54 Notwithstanding the above, this Lease is contingent upon LESSOR obtaining a Subordination,
9 File: GA 055-485-2200-20-2
Attornment and Non -Disturbance Agreement from any current lenders on the Premises, within
2 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,
4 Attornment and Non -Disturbance Agreementwith COUNTY, thereby insuring COUNTY of its
leasehold interests in the Premises. Said Subordination, Attornment and Non -Disturbance
6 Agreement shall be in the form of COUNTY's standard form Subordination, Attornment and
Non -Disturbance Agreement or in a form approved by the Communications Director, or
8 designee, Corporate Real Estate and County Counsel.
10 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
12 obligations and be responsible for all liabilities of the LESSOR under the terms of this Lease.
14 22. ESTOPPEL CERTIFICATE (6.5 S)
16 COUNTY agrees that its Communications Director, or designee, shall furnish from time to time
upon receipt of a written request from LESSOR or the holder of any deed of trust or mortgage
18 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
20 Certificate shall be approved by the Communications Director, or designee, Corporate Real
Estate, and County Counsel.
22
23. TOXIC MATERIALS (5.9 S)
24
COUNTY hereby warrants and represents that COUNTY will comply with all laws and
26 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
28 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,
30 employees, agents, and representatives, harmless from and against all claims, costs and
liabilities, including attorneys' fees and costs arising out of or in connection with the storage,
32 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
34 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
36 contamination, COUNTY shall promptly take any and all action necessary to clean up such
contamination.
38
Likewise, LESSOR hereby warrants and represents that LESSOR has in the past and will
40 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
42 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
44 COUNTY, its officers, directors, employees, agents, and representatives, harmless from and
against all claims, costs and liabilities, including attorneys' fees and costs arising out of or in
46 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
48 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
50 a level of contamination greater than maximum allowable levels established by any
governmental agency having jurisdiction over such contamination, LESSOR shall promptly
52 take any and all action necessary to clean up such contamination.
54
10 File: GA 055-485-2200-20-2
24. DEFAULTS AND REMEDIES (6.8 N)
2
The occurrence of a failure to perform any obligation, agreement or covenant under this
4 Lease shall constitute an event of default.
6 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
8 breach. COUNTY understands that time is of the essence and will work diligently to cure any
breach.
10
In the event of any breach of this Lease by LESSOR, COUNTY shall notify LESSOR in writing
12 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
14 breach.
16 COUNTY and LESSOR shall have the right to pursue all remedies available under the law.
18 25. DISPUTES (N)
20 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
22 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
24 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
26 available remedy in relation to the dispute.
28 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
30 the date that such notice is given, or at such other time as mutually agreed upon in writing by
COUNTY and LESSOR.
32
The mediator shall determine the mediation process. The parties further agree to share
34 equally the costs of the mediation, which costs shall not include costs incurred by either party
for representation by counsel in the mediation process.
36
26. AUTHORITY (N)
38
LESSOR and LESSOR's signatories represent that the signatories to this Lease hold the
40 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.
42
27. RECITALS (N)
44
The Recitals paragraphs above are hereby incorporated in this Lease by this reference.
46
28. NOTICES (8.1 S)
48
All notices pursuant to this Lease shall be addressed as set forth below or as either party may
50 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.
52
11 File: GA 055-485-2200-20-2
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TO: LESSOR
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Attn: Utility Services Director
TO: COUNTY
Sheriff -Coroner Department
Communications Division
840 N. Eckhoff St., Suite 104
Orange, CA 92868-1021
Attn: Communications Director
and and
City of Newport Beach Sheriff Real Property Services
3300 Newport Blvd. 320 N. Flower Street, Ste. 108
Newport Beach, CA 92658 Santa Ana, Ca. 92703
Attn: City Attorney 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
II. EXHIBITS
A. Description — Property
B. Site Plan — Premises
C. County Contractor's Insurance Requirements
12 File: GA 055-485-2200-20-2
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IN WITNESS WHEREOF, the parties have executed this Lease 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
LESSOR
APPROVED AS TO FORM:
City Attorney
By:
Assistant City Attorney
Date:
CITY OF NEWPORT BEACH
By:
Mayor
ATTEST:
M
City Clerk
13 File: GA 055-485-2200-20-2
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
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 form 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
9. HOLDING OVER (9.10 S)
2
In the event COUNTY shall continue in possession of the Premises after the term of this
4 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
6 in this Lease.
8 10. QUIET ENJOYMENT (9.13 S)
10 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
12 of this Lease, peaceably and quietly occupy the Premises.
14 11. GOVERNING LAW AND VENUE (9.16 S)
16 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
18 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
20 hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding
Code of Civil Procedure section 394.
22
12. TIME (9.17 S)
24
Time is of the essence of this Lease.
Page 3 of 3
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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 company's 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
Commercial General Liability including broad
single form property damage, operations, products,
completed operations, contractual liability,
and XCU (explosion, collapse and underground
property damage hazards)
Automobile Liability including coverage
for owned, non -owned and hired vehicles
Workers' Compensation
Employers' Liability Insurance
Builder's Risk Policy
Minimum Limits
$1,000,000 combined
limit per occurrence
$2,000,000 aggregate
$1,000,000 combined
single limit per
occurrence
Statutory
$1,000,000 per
occurence
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-
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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 ENDEAVOR TO MAIL 30 DAYS
WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO
THE LEFT. BUT FAILURE O MAIL AILSUCH SHALL InMPQ&E
NO OBLIGATION OR LIABILITY T-YOF NY KIND UPON THE
COMPANY, ITS AGENT OR REPRESENTATIVE.
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.
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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.
E