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06-07-2011 - Lease Agreement with Rowland Unified School Distri - Item 10 Attach (2).docCOMMUNICATIONS SITE LEASE AGREEMENT THIS COMMUNICATIONS SITE LEASE AGREEMENT (“Lease”) dated as of June 7, 2011 is between Rowland Unified School District ("Lessee”) whose address is 1830 South Nogales Street, Rowland Heights, CA 91748 and CITY OF WEST COVINA, a Municipal Corporation (“Lessor”) whose address is 1444 W. Garvey Ave., West Covina, CA 91790. The parties hereto agree as follows: Premises. Lessor represents that Lessor owns the real property legally described in Exhibit “A” commonly known as the “BKK Communications Tower” (“Tower”), Assessor’s Parcel Number 8735-002-0013, located at 2400 Azusa Avenue, West Covina, CA 91792 (“Lessor's Property”). Subject to the following terms and conditions, Lessor leases to Lessee space on the Tower for Lessee’s two (2) antennas and associated equipment in the existing old radio room. The space on the Tower and the associated equipment are referred to in this Lease as the “Premises.” Equipment includes a 30-Inch Motorola Cabinet. Use. Lessee may use the Premises for any lawful activity in connection with the provision of public safety radio services, including without limitation, the transmission, and the reception of radio communication signals on various frequencies and the installation, maintenance and operation of related communications facilities. Lessor agrees, at no expense to Lessor, to cooperate with Lessee, in making application for and obtaining all applicable licenses, permits and any and all other necessary approvals that may be required for Lessee's intended use of the Premises. Lessee shall have the right to modify, supplement, replace, upgrade, update, rewire, and expand the equipment within the Premises. Any future increase in the leased space, number of antennas, or any material alteration beyond that defined under Premises, or that requires additional governmental approval, shall require prior written approval of the City and may be subject to an amendment to the Agreement and/or renegotiation of the change. Lessee agrees to use the Premises in accordance with all applicable laws and regulations of governmental bodies with jurisdiction over the Premises and Lessee's Facilities (as defined below). Lessee shall be solely responsible for the cost of all improvements necessary to establish its Facilities on the Premises. Lessee shall make every effort not to disturb Lessor’s activities within the Property during the installation or daily operation of Lessee’s Facilities. Lessor acknowledges that, from time to time, Lessee’s installation and maintenance of its Facilities may intrude upon or limit Lessor’s activities. Lessee, however, shall limit its disturbance wherever possible, and shall complete all work within a reasonable time. In installing Facilities or conducting daily operations, Lessee shall comply with the requirements of the West Covina Municipal Code, including Requirements regarding noise regulations. Lessee agrees not to maintain or permit any nuisances on the Premises, nor permit the Premises to be used for any purpose other than what is permitted herein, nor use the Premises in violation of the laws, ordinances, rules or regulations of any public authority applicable. Lessee’s Facilities. Lessee has the right to maintain, install, repair and operate on the Premises radio communications facilities, including but not limited to, radio frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas (“Lessee's Facilities”). Lessee shall have the right to install any warning signs on or about the Premises required by federal, state or local law. All of Lessee's installation work shall be performed at Lessee's sole cost and expense and in a good and workmanlike manner. Lessee shall at all times during the term of this Lease maintain the Premises free and clear of all liens or rights of liens of contractors or subcontractors, material suppliers, or laborer liens arising out of work performed by, or on behalf of, Lessee. Title to Lessee's Facilities and any equipment placed on the Premises by Lessee shall be held by Lessee or its equipment lessors or assigns. Lessee's Facilities shall not be considered fixtures. Lessee shall fully and promptly pay for all utilities furnished to the Premises for the use, operation, and maintenance of Lessee's Facilities. Lessee shall be responsible directly to the appropriate utility companies for all utilities required for Lessee’s use of the Premises, and in no event shall Lessor be liable to Lessee for any power interruption, change in quality or failure of the supply of electricity or any other utility used by Lessee unless such interruption is caused by Lessor’s conscious disregard of circumstances or actions that may impair the power supply to the Premises and result in impairment of the operations of Lessee’s equipment at the Premises. Upon the expiration, cancellation or termination of this Lease, Lessee shall surrender the Premises to Lessor in good condition, less ordinary wear and tear as set forth in Section 10 below. Condition Precedent. This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining, and complying with, all applicable governmental licenses, permits and approvals enabling Lessee, or its assigns, to install and operate a public safety radio system on the Premises. Term. The term of this Lease (“Term”) shall be Five (5) years commencing sixty (60) days from the full execution of this Lease, (“Commencement Date”). The Parties may, upon mutual agreement, opt to extend the Term of this Lease for Five (5) additional Terms (“Renewal Term”) of Five (5) years each. Each Renewal Term shall be on the same terms and conditions as set forth herein, except as the Parties otherwise may amend pursuant to Section 18(i) of this Lease. Lessee shall provide Lessor with notice of intent to renew, or not to renew, within ninety (90) days of the expiration of the active Lease Term. This Lease shall automatically be extended for each successive Five (5) year Renewal Term unless Lessee notifies Lessor in writing of Lessee's intention not to extend this Lease at least thirty (30) days prior to the expiration of the first five-year Term or any Renewal Term. Rent. Provided the Lessor has issued Lessee a signed and complete W-9 Form, Lessee shall pay Lessor, as rent, the sum of Three Hundred and no/dollars ($300.00) (“Rent”) per month, in advance, on the first day of each month, to Lessor at Lessor's address specified below, except that the first payment of Rent shall be payable within twenty (20) days of the Commencement Date. The monthly Rent shall increase three percent (3%) of the lease Rent for the previous year, on each annual anniversary of the Commencement Date during the term of this Lease including any Renewal Term(s). Rent payments shall be made payable to the City of West Covina, CA, c/o Finance Department, 1444 West Garvey Ave., P.O. Box 1440 West Covina, CA 91793. If the Commencement Date is other than the first day of a calendar month, Lessee may pay the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter, Lessee shall pay a full month's Rent on the first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease, or if this Lease is terminated before the expiration of any month. Access. Lessee shall have the right (but not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date, to enter the Premises for the purpose of making necessary inspections, surveys, and other reasonably necessary tests (collectively “Tests”) to determine the suitability of the Premises for Lessee's Facilities (as defined herein) and for the purpose of preparing for the installation of Lessee's Facilities. During any Tests or pre-installation work, Lessee shall have and maintain at all times during the term of this Lease, insurance as set forth in Section 12, Insurance. Lessee will notify Lessor of any proposed Tests or pre-installation work and will coordinate the scheduling of it with Lessor. If Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee will notify Lessor and this Lease will terminate in accordance with Section 9 of this Lease. Lessor shall provide Lessee, Lessee's employees, agents, contractors, subcontractors and assigns with access to the Premises twenty-four (24) hours a day, seven (7) days a week, at no charge to Lessee. Lessor represents and warrants that it has full rights of ingress to and egress from the Premises, and hereby grants such rights to Lessee to the extent required to maintain, install, and operate Lessee's Facilities on the Premises, and to remove them from there. Lessee's exercise of such rights shall not cause undue inconvenience to Lessor. In order that Lessee’s exercise of such rights shall not cause undue inconvenience or disturbance to Lessor, Lessee shall notify the City at City of West Covina, CA, c/o Public Works Department, 1444 West Garvey Ave., P.O. Box 1440 West Covina, CA 91793 prior to accessing the Property or the Premises. In emergency situations, Lessee may access the Property or the Premises without any prior notification to Lessor provided that Lessee notifies the City within twenty-four (24) hours after such access. Lessee shall have access to the Premises from the nearest public roadway or parking lot to the Premises in a manner sufficient to allow reasonable access. If any damage to roadways or parking lots occurs as a result of Lessee’s use of the Premises, Lessee shall notify Lessor and assume responsibility for the repair in accordance with Section 15 of this Lease. Lessee shall have the right to install utilities, at Lessee's expense, and to improve the present utilities on or near the Premises (including, but not limited to the installation of emergency back-up power). Subject to Lessor's approval of the location, which approval shall not be unreasonably withheld, Lessee shall have the right to place utilities on (or to bring utilities across) Lessor's Property in order to service the Premises and Lessee's Facilities. Interference with Communications. Lessee's Facilities shall not disturb the communications configurations, equipment, and frequency, which exist on Lessor's Property on the Commencement Date (“Pre-existing Communications”), and Lessee's Facilities shall comply with all non-interference rules of the Federal Communications Commission. Lessor shall not permit the use of any portion of Lessor's Property in a way, which interferes with the use of the Premises described in Section 2, above. Lessor shall deem such interference with Lessee’s communications operations a material breach, and Lessor shall have the responsibility to promptly terminate said interference. In the event any such interference does not cease promptly, the parties acknowledge that continuing interference may cause irreparable injury to Lessee, and therefore, Lessee shall have (i) the right to bring action to enjoin such interference and (ii) the right to terminate this Lease immediately upon notice to Lessor, in addition to any other rights or remedies at law or in equity. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. Subsequent to the date of this Lease, Lessor shall not use its Property or permit its licensees, or invitees to use Lessor's Property for transmission or reception of communications or signals without the express prior written consent of Lessee, which consent shall not be unreasonably withheld. Lessee's consent may be withheld if interference with Lessee's transmissions, receptions, operations, or use of frequency will result due to such use, whether or not such interference is with Lessee's frequencies or otherwise. Termination. Lessor may terminate this Lease at any time without cause by giving the Lessee ninety (90) days calendar days written notice of such termination and specifying the effective date of termination. This Lease, in addition to any other remedies which may be pursued in law or in equity, may be terminated by either party upon a material default of any covenant, condition, or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default. This Lease may be terminated by Lessee without further liability for any reason or for no reason, provided Lessee delivers written notice of termination to Lessor prior to the Commencement Date. This Lease may also be terminated by Lessee without further liability on thirty (30) days prior written notice (i) if Lessee is unable to reasonably obtain or maintain any certificate, license, permit, authority or approval from any governmental authority, thus, restricting Lessee from installing, removing, replacing, maintaining or operating Lessee's Facilities or using the Premises in the manner described in Section 2 above; or (ii) if Lessee determines that the Premises are not appropriate for its operations for economic, environmental or technological reasons, including without limitation, signal strength, coverage or interference. Lessee shall, within ninety (90) days of the termination of this Lease, remove all fixtures, improvements, and equipment installed in the leased space by the Lessee, at the Lessee's sole expense. Lessee shall be financially responsible, pursuant to Section 15 of this Lease, for the replacement of any trees, shrubs, or other vegetation required for restoring the Premises to its original environment as of the Commencement Date. If Lessee fails to remove all improvements brought onto the Premises within ninety (90) days of the termination of this Lease, then the City shall remove all such improvements at its expense and restore the Premises to its original environment and shall invoice all such costs, including supporting documentation, for the restoration of the Premises to the Lessee. Lessee hereby agrees to pay the City the invoice amount within thirty (30) days of receipt. Destruction of Premises. If the Premises or Lessor's Property is destroyed or damaged so as in Lessee's judgment, to hinder its effective use of Lessor's Property, Lessor shall make available to Lessee within fourteen (14) days a temporary site on the Property (or on other property owned or controlled by Lessor) which in Lessee's sole discretion is equally suitable for Lessee's use. Lessee may install, operate, and maintain substitute Lessee's Facilities thereon until Lessee's Facilities are fully restored and operational on the Premises. Rent shall abate in full during any time that Lessee is unable to operate Lessee's Facilities on the Property. Alternatively, Lessee may elect to terminate this Lease as of the date of the damage or destruction by so notifying Lessor no more than thirty (30) days following the date of damage or destruction. Condemnation. If a condemning authority takes all or a portion of Lessor's Property, which in Lessee's opinion is sufficient to render the Premises unsuitable for Lessee's use, then Lessee may terminate this Lease as of the date when possession is delivered to the condemning authority. In any condemnation proceeding each party shall be entitled to make a claim against the condemning authority for just compensation (which for Lessee shall include, the value of Lessee's Facilities, moving expenses, prepaid rent, business dislocation expenses, bonus value of the lease and any other amounts recoverable under condemnation law). Sale of all or part of the Premises to a purchaser with the power of eminent domain in the face of the exercise of its power of eminent domain shall be treated as a taking by a condemning authority. Insurance. Lessee shall maintain the following insurance: (1) Commercial General Liability with limits of Five Million Dollars ($5,000,000.00) per occurrence, covering Lessee's use, occupancy and operations on the Premises, such limit may be satisfied by a combination of primary and umbrella policies; (2) Automobile Liability with a combined single limit of $1,000,000.00 per accident; (3) Workers’ Compensation as required by law; and (4) Employer's Liability with limits of $1,000,000.00 per occurrence. Each party to this Lease shall each maintain standard form property insurance (“All Risk” coverage) equal to at least 90% of the replacement cost covering their respective property. Each party waives any rights of recovery against the other for damages or loss due to hazards covered by their property insurance and each party shall require such insurance policies to contain a waiver of recovery against the other. Lessee shall name Lessor as an additional insured with respect to the above Commercial General Liability insurance. Both Lessor and Lessee shall have the right to self-insure with respect to any of the above insurance. Assignment. Lessee may not assign, transfer, or sublease Lessee’s interest in the Premises or enter into any collocation agreements or otherwise permit collocation of third party equipment or facilities on the Premises without Lessor’s consent. Title and Quiet Enjoyment. Lessor represents and warrants that it has full right, power, and authority to execute this Lease. Lessor further warrants that Lessee shall have quiet enjoyment of the Premises during the Term of this Lease or any Renewal Term. Lessor hereby represents and warrants that it has obtained all necessary approvals and consents, and has taken all necessary action to enable Lessor to enter into this Lease and allow Lessee to install and operate Lessee's Facilities on the Premises, including without limitation, approvals and consents as may be necessary from other tenants, licensee and occupants of Lessor's Property. Repairs and Maintenance. If Lessee, its employees, agents, contractors or subcontractors, cause damage to the Premises, the Property, or the roadways and parking lots used to access the Premises or Property, during Lessee’s use of the Premises and the Property, Lessee’s operation of Lessee’s Facilities, or Lessee’s removal of its Facilities, Lessee shall immediately notify Lessor of said damage. Lessor reserves the right to repair, or cause the repair, of such damage and invoice the Lessee for actual costs incurred. Lessee shall be responsible for the actual cost of repairing all damage caused by Lessee, its employees, agents, contractors or subcontractors. Lessor may, at its sole discretion, allow Lessee to conduct the repairs using Lessor’s contractor, Lessee’s staff, or Lessee’s contractor. All repair work is subject to Lessor’s approval. In the event that Lessee fails to conduct repairs to the satisfaction of Lessor, Lessor may issue a notice of default, if applicable pursuant to Section 9 of this Lease, and hold Lessee fully liable for the actual cost of re-performance of repairs to Lessor’s satisfaction. Lessee shall maintain Lessee’s Facilities within the Premises in a reasonable condition and shall be solely responsible for the repair and maintenance thereof. Lessor shall not be responsible for any vandalism that may occur upon the Premises by circumstances beyond the reasonable control of Lessor. Lessee shall maintain its Facilities in accordance with Municipal Code requirements applicable to same (including, but not limited to, West Covina Municipal Code Section 26-685.992). Upon Lessee’s failure to repair, Lessor reserves the right to repair or cause the necessary repairs, and Lessee shall be responsible for the full costs incurred by Lessor. Environmental. Lessee agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Property in violation of any law or regulation. Lessor represents, warrants and agrees (1) that neither Lessor nor, to Lessor's knowledge, has any third party used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material (defined below) on, under, about or within the Property in violation of any law or regulation, and (2) that Lessor will not, and will not permit any third party to use, generate, store or dispose of any Hazardous Material on, under, about or within the Property in violation of any law or regulation. Lessor and Lessee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this Section 16. As used in this Section 16, “Hazardous Material” shall mean petroleum or any petroleum product, asbestos, any substance known by the State of California to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. This Section 16 shall survive the expiration or earlier termination of this License. Limitation of Liability. Lessee agrees to indemnify Lessor, its officers, employees and agents against, and will hold and save each of them harmless from, any and all obligations or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization to the extent arising out of or related to the negligent acts, willful misconduct, errors or omissions caused by or arising out of operations or activities on the Property by Lessee, its agents, employees, or subcontractors, except to the extent such claims, damages, penalties, obligations, or liabilities arise from the negligence or willful misconduct of Lessor, its officers, employees, and agents. Lessee will defend any action or actions filed in connection with said claim, damages, penalties, obligations or liabilities and will pay all reasonable costs and expenses, including reasonable attorneys’ fees incurred in connection therewith. Lessee will promptly pay any judgment rendered against Lessor, its officers, employees and agents for any such claims, damages, obligations or liabilities. In the event that Lessor, its officers, employees and agents are made a party to any action or proceeding filed or prosecuted against Lessee for such claims or other damages arising out of or in relation to the negligence, willful misconduct, errors or omissions caused by or arising out of operations or activities on the Property by Lessee, Lessee agrees to indemnify Lessor as provided herein. Except for indemnification pursuant to Section 16 of this Lease, and subsections (a) through (d) of this Section 17, neither party shall be liable to the other, or any of their respective agents, representatives, or employees, for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (not including negligence), strict liability or otherwise. Miscellaneous. Notices shall be in writing and shall be delivered to Lessee, whose address is Rowland Unified School District, 1830 South Nogales Street, Rowland Heights, CA 91748 and to Lessor, Attn: Finance Department, to the address of the respective party given at the beginning of this Lease, or to the address specified in the most recent written notice of any change in address. Delivery of notices shall be made by hand, U.S. mail return receipt requested or reliable overnight courier. If Lessee is to pay Rent to a payee other than the Lessor, Lessor shall notify Lessee in advance in writing of the payee's name and address. The prevailing party in any legal claim arising hereunder shall be entitled to its reasonable attorney's fees and court costs, including appeals. If any provision of the Lease is invalid or unenforceable with respect to any party, the remainder of this Lease or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. Terms and conditions of this Lease which by their sense and context survive the termination, cancellation or expiration of this Lease will so survive. Said terms and conditions include, but are not limited to, Sections 16(a) and 18 of this Lease. This Lease shall be governed under California law, and be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. In the event of litigation between the parties, venue in State trial courts shall lie exclusively in the County of Los Angeles. In the event of litigation in the U.S. District Court, exclusive venue shall lie in the Central District of California. No waiver by any party of a breach of any provision of this Lease shall constitute a waiver of any subsequent breach of the same or any other provision of this Lease. The headings contained in this Lease are inserted for convenience only and are not intended to be part of this Lease. They shall not affect or be utilized in the construction or interpretation of this Lease. This Lease constitutes the entire Lease between the parties, and supersedes all understandings, offers, negotiations, and other leases concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments, modifications or waivers of any of the terms and conditions of this Lease must be in writing and executed by both parties. (Signature on following page) IN WITNESS WHEREOF, the parties have entered into this Lease effective as of the date first above written. LESSEE: ROWLAND UNIFIED SCHOOL DISTRICT By: ________________________________ Ruben Frutos, Assistant Superintendent of Administrative Services Date: Approved as to Form _________________________________ RUSD Legal Counsel CITY OF WEST COVINA A Municipal corporation By: ________________________________ Steve Herfert, Mayor Date: Approved as to Form _____________________________________ Arnold M. Alvarez-Glasman, City Attorney EXHIBIT “A” LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: PARCELS 1 AND 2 OF PARCEL MAP NO.24585, IN THE CITY OF WEST COVINA, AS PER MAP FILED IN BOOK 301 PAGES 61 THROUGH 68 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT ALL OIL, GAS, AND OTHER HYDROCARBONS AND ALL MINERALS, TOGETHER WITH THE RIGHT TO DEVELOP, PRODUCE AND EXTRACT THE SAME, AS GRANTED TO NARCISSE S. GARNIER, ET AL., BY DEED RECORDED SEPTEMBER 29, 1944 IN BOOK 21288 PAGE 260, OFFICIAL RECORDS. BY INSTRUMENTS OF RECORD, THE OWNERS OF SAID OIL, GAS, AND OTHER HYDROCARBONS AND MINERALS, RELINQUISHED ALL OF THEIR RIGHTS TO ENTER UPON THE SURFACE OF SAID LAND OR THE SUBSURFACE THEREOF TO A DEPTH OF 500 FEET BELOW THE SURFACE THEREOF, (MEASURED VERTICALLY FROM THE SURFACE, FOR THE PURPOSE OF DEVELOPING, PRODUCING AND EXTRACTING THE SAME. PARCEL 2: PARCEL 5 OF RECORD OF SURVEY BOOK 85, PAGES 10 TO 12 INCLUSIVE, IN THE CITY OF WEST COVINA, AS PER RECORD OF SURVEY FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT FROM THAT PORTION OF SAID LAND INCLUDED WITHIN THE LINES OF THE RANCHO LA PUENTE DESIGNATED AS “LOT 1-1769-A” ON THE MAP SHOWING THE PARTITION OF SAID RANCHO, A CERTIFIED COPY OF WHICH MAP IS RECORDED IN BOOK 1260, PAGE 163 OF DEEDS. ALL OIL, GAS AND OTHER HYDROCARBONS AND ALL MINERALS, TOGETHER WITH THE RIGHT TO DEVELOP, PRODUCE AND EXTRACT THE SAME, AS GRANTED TO NARCISSE S. GARNIER, ET AL., BY DEED RECORDED SEPTEMBER 29, 1944 AS INSTRUMENT NO. 325 IN BOOK 21288, PAGE 260, OFFICIAL RECORDS. BY INSTRUMENTS OF RECORD, THE OWNERS OF AN UNDIVIDED 833.34/1000THS INTEREST IN SAID OIL, GAS AND OTHER HYDROCARBONS AND MINERALS RELINQUISHED ALL OF THEIR RIGHTS TO ENTER UPON THE SURFACE OF SAID LAND OR THE SUBSURFACE THEREOF TO A DEPTH OF 500 FEET BELOW THE SURFACE THEREOF (MEASURED VERTICALLY FROM THE SURFACE) FOR THE PURPOSE OF DEVELOPING, PRODUCING AND EXTRACTING THE SAME. EXCEPT THEREFROM THE “PRECIOUS METALS AND ORES THEREOF” AS EXPECTED FROM THE PARTITION BETWEEN JOHN ROWLAND SR. AND WILLIAM WORKMAN RECORDED IN BOOK 10 PAGE 39 OF DEEDS.