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.
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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
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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
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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.
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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
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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
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