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14-0623_VERIZON WIRELESS_Access AgreementACCESS AGREEMENT THIS ACCESS AGREEMENT ("Agreement") dated as of June )3, 2014 ("Effective Date"), is made by and between the CITY OF SAN JUAN CAPISTRANO, a public body, corporate and politic ("City") and the SUCCESSOR AGENCY TO THE CITY OF SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY, a public agency pursuant to Health and Safety Code Section 34173 ("Agency"), and LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership, d/b/a Verizon Wireless ("VZW"). RECITALS: This Agreement is entered into upon the basis of and with respect to the following facts, understandings and intentions of the parties: A. The City is the owner of certain real property located at 32681 Alipaz Street, in the City of San Juan Capistrano, Orange County, California and legally described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"). B. The City and VZW are currently negotiating the terms of a Wireless Communications Facilities Site License Agreement, pursuant to which the City would license part of the Property to VZW to install and operate a telecommunications facility (the "License Agreement"). C. VZW has requested that the City allow VZW access to the Property for the purposes, in the manner, and subject to the conditions set forth in this Agreement. Now, therefore, the undersigned parties agree as follows: 1. During the term of this Agreement, the City shall allow VZW, its representatives and consultants (collectively, the "VZW Parties") access to the Property upon reasonable prior written notice to the City at reasonable times for the purpose of performing a Phase II environmental assessment of the Property, including the take of soil samples, provided (a) such access does not interfere with the use by the City or other City Parties (as defined below) and (b) the City shall have the right to pre -approve (which approval the City shall not unreasonably withhold, condition, or delay) and be present during any physically intrusive testing of any portion of the Property. 2. In the event this Agreement is terminated prior to the mutual execution of the License Agreement, VZW shall promptly deliver, following the City's written request, copies of the results of any third party examinations, inspections, investigations, tests, studies, analyses, evaluations and/or investigations prepared by or for or otherwise obtained by the VZW Parties in connection with VZW's review of the Property, including without limitation all drafts thereof (collectively, the "VZW Reports") without any warranty as to their accuracy for completeness and subject to the rights of third parties in such VZW Reports and any confidentiality restrictions applicable to same. 2499/028428-0002 7096738.2 a06/03/14 3. Following any inspections, the VZW Parties shall, if applicable, promptly repair any damage to the Property resulting from any VZW Party's use of or entry onto the Property and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such inspections so that the Property shall be in the same condition that it existed in immediately prior to such inspections, it being understood, however, that except as otherwise provided herein, this provision shall not be deemed the City's permission or consent to intrusive testing. 4. Prior to such time as any VZW Party enters the Property or any portion of the Property, VZW shall obtain, at Verizon's sole expense, a policy of commercial general liability insurance, with a broad form contractual liability endorsement and with a combined single limit of not less than $5,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $5,000,000 per occurrence for bodily injury and property damage, including the City as an additional insured, against any injuries or damages to persons or property that may result from or are related to (i) any VZW use of or entry onto the Property, and/or (ii) any inspections or other activities conducted thereon, all of which insurance shall be on an "occurrence form" and with an insurance company acceptable to the City, and deliver a certificate evidencing such insurance policy to the City prior to the first entry on the Property. Any consultant or contractor performing any activities on VZW's behalf pursuant to this Agreement shall also maintain the above insurance policies. 5. The VZW Parties shall not permit the inspections or any other activities undertaken by the VZW Parties to result in any liens, judgments or other encumbrances being filed or recorded against the Property, and the VZW Parties shall, at their sole cost and expense, immediately discharge of record any such liens or encumbrances that are so filed or recorded (including, without limitation, liens for services, labor or materials furnished). 6. Each party acknowledges that any non-public information heretofore or hereafter furnished to such party by the other party with respect to the Property or the transaction contemplated under this Agreement and/or the License Agreement has been and will be so furnished on the condition that the receiving party maintains the confidentiality thereof. The terms and conditions set forth in this Section shall survive the termination of this Agreement. 7. VZW shall indemnify, protect, save, hold harmless and defend (with counsel reasonably approved by the City) the City, its departments and commissions, and its officers, officials, employees, consultants, agents, and representatives (collectively, "Indemnitees") from and against any and all loss, damage, liability or expense, including court costs, reasonable expert witness fees, and reasonable attorneys' fees, which City may sustain, incur or become liable for, including loss of or damage to property or injury to or death of persons and fines arising in any manner out of or in connection with any VZW Party's use of or entry onto the Property at any time during the term of this Agreement. The terms and conditions set forth in this Section shall survive the termination of this Agreement. 8. Notwithstanding anything to the contrary contained in this Agreement, the parties acknowledge and agree that any and all rights conferred upon VZW or any VZW Party pursuant to this Agreement create a revocable license only, and that no lease, tenancy, leasehold or other right or interest of any kind nature (other than a license) is created or conferred pursuant to this 2499/028428-0002 7096738.2 a06/03/14 -2- Agreement. VZW acknowledges and agrees that the license conferred upon VZW and the VZW Parties under this Agreement shall be revocable at any time by the City upon written notice to VZW. 9. All notices required or permitted hereunder shall be in writing and shall be served on the parties at the following address: If the City: The City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Manager Telephone: (949) 443-6317 Facsimile: (949) 493-1053 E-mail: CSalcedo@sanjuancapistrano.org with a copy to: Rutan & Tucker, LLP 611 Anton Blvd., Ste. 1400 Costa Mesa, CA 92626 Attention: Hans Van Ligten, Esq. Telephone: (714) 641-5100 Facsimile: (714) 546-9035 E-mail: HVanLigten@rutan.com If to VZW: LOS ANGELES SMSA LIMITED PARTNERSHIP d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Any such notices may be sent by (a) personal service, in which case notice shall be deemed delivered upon receipt, (b) a nationally recognized overnight courier, in which case notice shall be deemed delivered upon receipt by such courier, or (c) certified mail, return receipt requested. The above addresses may be changed by written notice to the other party; provided that no notice of a change of address shall be effective until actual receipt of such notice. 10. Each of the VZW Parties shall not and may not assign its rights, obligations and interest in this Agreement to any other person or entity, without first obtaining the City's written consent thereto which may be withheld in the City's sole and absolute discretion. Any attempted assignment in violation of the foregoing provisions shall be null and void. This Agreement shall inure to the benefit of and be binding upon the parties to this Agreement and their respective successors and permitted assigns. 11. This Agreement shall automatically terminate and be of no further force and effect upon the earlier of (a) any breach by a VZW Party of the terms and provisions of this Agreement, after notice and the expiration of applicable cure periods, (b) the date the License Agreement is executed by both the City and Verizon, or (c) one hundred eighty (180) days following the 2499/028428-0002 7096738.2 a06/03/14 —3— Effective Date of this Agreement ("Expiration Date"). Notwithstanding the foregoing, the confidentiality provisions of Section 6 above and the indemnification provisions of Section 7 above shall survive any termination of this Agreement. 12. VZW acknowledges and agrees that upon expiration or any earlier termination of this Agreement, neither VZW nor any VZW Party shall have any right, license or authority whatsoever to enter or be present upon the Property under this Agreement. VZW shall cause all personal property brought on the Property by VZW or any VZW Party to be removed on or before the Expiration Date or immediately upon any earlier termination of this Agreement, and shall leave the Property (and all improvements, personal property and fixtures thereon) in the same condition as it was upon the Effective Date to the extent such condition is altered due to the actions of VZW or any VZW Party. 13. VZW acknowledges and agrees that the City shall have the right to terminate this Agreement at any time. To effectuate a termination of this Agreement in accordance with this Section, the City shall deliver written notice of such termination to VZW at least three (3) business days in advance of such termination date. 14. If for any reason any provision of this Agreement shall be held to be unenforceable, it shall not affect the validity or enforceability of any other provision of this Agreement. No failure, partial exercise or delay of the City in exercising any right, power or privilege hereunder shall operate as a waiver thereof. 15. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of California. In the event any of the parties hereto resorts to legal counsel in order to enforce, construe or interpret the terms and conditions of this Agreement, the prevailing party in any litigation relating to or arising therefrom shall be entitled to their reasonable attorneys' fees and all costs and expenses relating thereto. 16. This Agreement expresses the entire agreement of the parties and supersedes any and all previous agreements between the parties with regard to the subject matter hereof. There are no other understandings, oral or written, which in any way alter or enlarge its terms, and there are no warranties or representations of any nature whatsoever, either expressed or implied. Any and all future modifications of this Agreement will be effective only if it is in writing and signed by the parties hereto. The terms and conditions of any and all future modifications of this Agreement shall supersede and replace any inconsistent provisions in this Agreement. [Continued on next page] 2499/028428-0002 7096738.2 a06/03/14 -4- 1.7. This Agreement may be executed in two or more counterparts, each of which shall be deemed originals, and all of which taken together shall constitute one instrument. THE CITY: CITY OF SAN JUAN CAPISTRANO, a public body, corporate and politic APPROVED AS TO FORM: Hans an igten, City Attorney �e: VERIZON: LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership, d/b/a Verizon Wireless By: AirTouch Cellular, its General Partner By: Name: Brian Mecum Title: Area Vice President Network 2499/028428-0002 7096738.2 a06/03/14 -5- EXHIBIT A All that certain real property situated in the County of Orange, State of California, described as follows: The Easterly 60 acres of Parcel "L", per a map recorded in Book 2, Page 38 of Surveys in the County Recorders Office of Orange County, California, in the City of San Juan Capistrano, County of Orange, State of California, except the following described Parcel: Beginning at a 1" iron pipe at the most Northwesterly corner of said Easterly 60 acres; thence South 69° 14' 53" East 629.88 feet along the Northerly line of said Parcel "L" to a 2" iron pipe at an angle point in said Northerly line; thence South 89° 19' 49" East 194.11 feet along said Northerly line; thence leaving said line South 0° 40' 11" West 9.25 feet to the beginning of a non tangent curve concave to the Southeast having a radius of 264.75 feet, to which point a radial line bears North 0° 40' 11" East; thence Southwesterly along said curve through a central angle of 71 ° 03' 30" an arc distance of 328.34 feet; thence on a tangent line South 19° 36' 41" West 104.91 feet to the beginning of a tangent curve concave to the Northwest having a radius of 235.25 feet; thence Southwesterly along said curve through a central angle of 70° 20' 17" an are distance of 288.80 feet to the beginning of a reverse curve concave to the Southeast having a radius of 264.75 feet; thence Southwesterly along said reverse curve through a central angle of 90° 00' 00" an arc distance of 415.87 feet to a radial line of said curve which bears South 89° 56' 58" West; thence on the prolongation of said radial 8.58 feet to the Westerly line of the Easterly 60 acres of said Parcel "L"; thence North 0° 03' 02" West 930.68 feet along the Westerly line of said Easterly 60 acres to the point of beginning. Excepting that portion as conveyed to the City of San Juan Capistrano as per deed recorded in Book 11648, Page 1825 to 1829 inclusive of Official Records, County of Orange, California. Assessor's Parcel Number: 121-190-57 2499/028428-0002 7096738.2 a06/03/14