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HomeMy WebLinkAboutStaff Report 5.B 4/7/2014(9) DATE: April 07, 2014 TO: Honorable Mayor and Members of the City Council through City Manager FROM: Dan St. J hnirector, Public Works &Utilities 11 Leonard Olive — Operations Manager SUBJECT: Introduce (First Reading) Ordinance approving First Amendment to Site Lease Agreement with Sirius XM Radio Inc. flea XM Satellite Radio Inc. RECOMMENDATION It is recommended that the City Council introduce the attached Ordinance approving the First Amendment to the Site Lease Agreement between the City of Petaluma and Sirius XM Satellite Radio Inc., lka XM Satellite Radio Inc. dated February 20, 2001, and authorizing the City Manager to execute all documents to effect the First Amendment to Site Lease Agreement. BACKGROUND A portion of the City's La Cresta water reservoir site located at 601 Hayes Lane was leased under the terms and conditions set forth in the Site Lease Agreement dated February 20, 2001 by and between the City of Petaluma ("Landlord") and XM Satellite Radio Inc.. XM Satellite Radio Inc. has merged with Sirius Satellite Radio to form Sirius XM Radio, Inc. ("Tenant"). Sirius XM Radio Inc. desires to enter into a First Amendment to the Site Lease Agreement to allow for the installation of additional antennas, associated cabinets and cables, and other communications instruments as described in Exhibit C to the First Amendment. The proposed additions will not interfere with the operations of the City reservoir facility. The First Amendment also provides for up to four (4) five (5) year automatic lease renewals. The proposed action meets Council Goal: "Achieve fiscal stability and maintain financial sustainability". DISCUSSION The First Amendment to the Site Lease Agreement (Attaclunent 2) includes a plan set submitted to the City by Sirius XM Radio Inc. in December 2013. This Amendment allows the tenant to update existing equipment and install new equipment at the site. Sheet C-1 A of the plan set shows existing Sirius XM Radio Inc. equipment as well as the proposed new equipment. The First Amendment also allows the Site Lease Agreement to automatically renew for up to four (4) Agenda Revie�y; City Attorne ,w' Finance Director City Manager additional five (5) year terms, thus providing a level of security that the tenant requires in order to justify the significant expense of their upgrade investment. All other provisions of the Site Lease Agreement remain unchanged. All renewals are subject to the original inflation (CPI) factors included in the original agreement. Current monthly lease rate is $2,183.63. Based on a recent February 2014 market study of other Bay area sites of similar footprint, the current monthly lease rate to the City exceeds the average prevailing market by approximately 40%. FINANCIAL IMPACTS The First Amendment to the Site Lease Agreement will ensure a long-term cash flow stream to the City without any subsequent damages or operational constraints on the City's well site. The lease rate is fair and above current market rates for similar facilities within the region. The lease revenue is budgeted in the water enterprise fund. ATTACHMENTS 1. Ordinance 2. Original Site Lease Agreement (February 20, 2001) 3. Ordinance No. 2105 N.C.S. (March 22, 2001) 4. First Amendment to Site Lease Agreement (Exhibit A) with Plan Set (Exhibit B) and Lessee Equipment List (Exhibit C) 1) Attachment 1 ORDINANCE NO. N.C.S. Introduced By Councilmember Seconded by Councilmember Seconded By ORDINANCE APPROVING FIRST AMENDMENT TO THE SITE LEASE AGREEMENT BETWEEN THE CITY OF PETALUMA AND SIRIUS XM SATELLITE RADIO INC., flea XM SATELLITE RADIO INC., DATED FEBRUARY 20, 2001 AND AUTHORIZING THE CITY MANAGER TO EXECUTE ALL DOCUMENTS TO EFFECT FIRST AMENDMENT TO THE SITE LEASE AGREEMENT WHEREAS, Certain real property located in the City of Petaluma was leased under the terms and conditions set forth in the Site Lease Agreement ("the Agreement') dated February 20, 2001, by and between the City of Petaluma a municipal corporation, having a mailing address of P O Box 61, Petaluma, CA 94953-0061 ("Landlord") and XM Satellite Radio Inc. ("Tenant'), a copy of which is attached as Attachment 3 and incorporated herein by reference; and WHEREAS, Sirius XM Satellite Radio Inc., having a mailing address of 1221 Avenue of the Americas, 37`h Floor, New York, NY 10020, was formerly known as XM Satellite Radio Inc.; and WHEREAS, Landlord and Sirius XM Satellite Radio Inc., fka XM Satellite Radio Inc., desire to enter into a First Amendment to Site Lease Agreement ("First Amendment') to allow for the installation of additional antennas, associated cabinets and cables, and other communications instruments, and provide for up to four automatic five-year renewals as described in the First Amendment attached hereto as Exhibit A and incorporated herein; and WHEREAS, the installation of additional communications instruments pursuant to the First Amendment is categorically exempt from the California Environmental Quality Act ("CEQA") pursuant to section 15301 of the CEQA Guidelines as operation repair, maintenance, leasing and minor alteration of existing public and private structures, facilities and mechanical equipment involving negligible expansion of use beyond that now existing on the City property at 601 Hayes Lane. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS: 3 Section 1. The City Manager is hereby authorized to execute the First Amendment to the Site Lease Agreement attached hereto as Exhibit A and all documents required to effect the First Amendment. Section 2. The City Clerk hereby is directed to publish this ordinance for the period and in the manner required by the City Charter. INTRODUCED and ordered posted this _day of ADOPTED this _ day of AYES: NOES: ABSENT: ABSTAIN: ATTEST: Claire Cooper, City Clerk 2014. 2014 by the following vote: David Glass, Mayor APPROVED AS TO FORM: Eric Danly, City Attorney 4 rUY• - o _r Attachment') SITE LEASE AGREEMENT THIS SITE LEASE AGREEMENT (this "Lease") dated as of February 20, 2001, (the "Effective: date"),, is between XM Satellite Radio. Inc., 'a Delaware corporation (°Lessee°) whose address is 1500 Eckington Place NE, Washington, DC 20002 and City of Petaluma, a municipal. corporation ("Lessor") whose" address.is 15 English Street., Petaluma, California 94952. The parties hereto agree as follows: 1. Premises. Lessor owns the real property legally described in Exhibit "A', commonly known as 601 Hayes Street;.Petaluma,'Callfornia ("Lessor's Property"). Subject to the following terms and conditions, -Lessor Teases to Lessee that portion of Lessces.Property depicted in Exhibit B', including any necessary or otherwise applicable easements for access and utilities (the 'Premises'). 2. Use. The Premises may be used by Lessee for any.lawful activity in connection with the, provision of mobile/wireless communications services, including without, limitation, the transmission and the reception of radio communication signals -on various frequencies; the construction, maintenance and operation of related communications• facilities including the upgrade, .repair or replacement of such equipment and facilities; and environmental and other testing, Lessor..agrees, at no expense to Lessor, to cooperate with Lessee, in making application for and obtaining all licenses'; permits, and any and all other necessary approvals that maybe required for Lessee's intended use of the`Premises. 3. Conditions,:Precedent- Lessee's obligations. under this Lease are conditioned upon Lessee, or Lessee's successors -.or assigns, obtaining all governmental permits and approvals enabling Lessee, or its successors or assigns, to construct and operate mobile/wireless communications facilities on the Premises. 4. Term. The initial term of this Lease (the °term")' shall. be five (5) years, commencing upon a "Commencement.,Date" •which shall be the eaflier of the date. of issuance of a local building permit allowing Lessee to construct Lessee's Facilities (as defined below) on the Premises, or May 1. 2Jthe "Outside Commencement Date'), and terminating on the last day.of the month in which the fifth (51) anniversary of the Commencement Date occurs. This Lease shall renew for up to two' (2) additional five (5) year terms (each an "Extension Term°), and,. except for rent, upon the same terms and conditions as set forth' in this Lease, subject to landlord's consent, unless Lessee notifies Lessor in writing of Lessee's intention not to renew ithis Lease at least ninety, (90) days prior to.expiration of the then curient Term or Extension Term, Monthly rent for extension terms shall be negotiated by the parties prior to commencement of. any extension terms. S. Relit. Commencing on.the Commencement,Dotei.Letsee shall pay Lessor, as rent, the sum of One Thousand Five Hundred Dollars ($1,500.00) ("Rent-') ,per month. Rent shall be payable'on or before the first (18t) day of each month, in advance, to Le§soy`s address specified below in Paragraph 19 (c). Rent during 'years two. through five shall be increased on each anniversary of the Commencement Day by an amount equal to a minimum of three percent (3%) of the Rent for the previous year or equal to the annual percentage increase In the Consumer Price Index, whichever is greater. If the Commenceineht Date is other than the first day of a calendar month, Lessee shall pay on the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences; thereafter Lessee shall pay a full month's Rent on or before the first (1iBi) day of each calendar month, except that payment shall also be prorated for the final fractional month .(If any) of this Lease or in the event that this Lease is terminated before the expiration of any month for which Rent should 'have been paid. 6. improvements: Access. (a) At anytime during the period beginning on the Effective Date and ending on the Outside Commencement Date (the 'Effective Period") and during the Term and any Extension Term of this Lease, Lessee and/or its employees, agents, contractors and/or other representatives shall have the right (but not the obligation) (A) to enter Lessor's Property and the Premises (f) for the purpose of conducting 1199-001 inspections, surveys, arfd tests (including, but not limited to, environmental surveys, engineering tests, and soil and drainage tests) (coilecfively, Tests') and'.(u) for the purpose of.preparing- for the construction of Lessee's Facilities (as defined .below) (including, -but not limited to, preparation of applications- for licenses, permits, zoning approvers, special use permits and construction permits); and (B) to otherwig do those things on or off Lessor's Property and the Premises. that are necessary in Lessee's discretion to determine the suitability of the Premises for Lessee's 'Facili(ies (as defined below). During any Tests or pre -construction work, Lessee shall maintain insurance as set forth in Paragraph 13 below. Lessee shall notify Lessor of any propos.'ed Tests or pre -construction work and shall coordinate the scheduling of.same with Lessor_ In consideration of Lessee's rights during the Effective Period, Lessee shall pay Lessor a single nonrefundable deposit of one month's Rent. (as defined above) on the .Effective Date (the 'Effective Period DeposH°).payabl6 in addition to rent:::Duiing-the Effective Period, H -Lessee determines that the Premises are. unsuitable. for Lessee's Facilities. (as defined below) or contemplated use, then Lessee shall so notify Lessor, this Lease will terminate, and Lessor shall retain the Effective Period Deposit If Lessee determines -that the Premises are, "sukable for Lessee's Facilities (as defined below)' and contemplated use, no notice shall be. necessary; Lessor shall lease the Premises to Lessee automatically subject to theterms and. conditions in this Lease. (b) Lessee ,shaliaiave the right to construct,.maintain, replace, upgrade,'testand operate on the Promises communlimfieit.'s :facilkie's, including but not limited. to, radio frequency transmitting and receiving equipment, batteries; utility lines, transmission lines, radio irequencytransmitting and receiving antennas and supporting stnuctutes, and improvements ('Lessee's, Facilities"). In connection therewith, Lessee shall have the. right to do all work necessary to prepare, add', maintain and alter the Premises for Lessee's communications. operations and to install utility lines and' transmission lines connecting antennas to transmitters and receivers. All of Lessee's construction' and installation work shall be performed at Lessee's solo cost.and.expense and in •a good and.workmanlike manner. Tole to Lessee's Facilities and any equipment,placed-on the Premises by Lessee shall be held by Lessee. All of Lessee's Facilities shall remain the property of Lessee and are not fixtures. Lessor hereby waives any lien for rent or other charges, whether arisin, g under this Lease, by operation of law or otherwise, whether now or hereafter to arise, and. all rights- to levy or distrain.upon Lessee's Facilities or other property of Lessee. Lessee may obtain credit or financing from one. or more lenders (the 'Lendersl secured by any or all .property of Lessee, including, but not limited to Lessee's Facilities. Lessor hereby consents to any grant by Lessee to the. Lenders of a security interest in any'property.of Lessee and to any foreclosure thereon. Lessee, at Lessee's option, shall have the right to remove all or part of Lessee's Facilities at Lessee's expense on or before the expiration or termination of this Lease. (c) Lessor shall provide. access to Lessee, Lessee's employees, agents, contractors and/or other representatives, to the Premises twenty-four (24) hours a day, seven (7) days a week, at no additional 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 construct, install, maintain, repair and operate Lessee's Facilities on the Premises. Maintenance Utilities. (a) During the Term, Lessee shall, at Lessee's expense, keep and maintain the Premises and Lessee's Facilities in sound condition, reasonable wear and tear and uninsured casualty excepted. Lessor shall maintain and repair Lessor's Property and access thereto, In good and tenantable condition, reasonable wear and teal and uninsured casualty excepted. Lessor shall maintain all access roadways from the nearest publie foadway to -the Premises In a manner sufficient to allow access:. Lessor shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by Lessee's use of such roadways. If Lessee causes any such damage, it'shail promptly repair same. (b) Lessee; at Lessee's option, shall have the right to install utilities, at Lessee's expense, and to improve the preseft'utilities on or near the Premises (including, but not limited to the installation of emergency back-up:power equipment). Subject to Lessor's approval of the location, which approval shall not be unreasonably withhe Id, Lessee shall have the right to place utilities on (or to bring. utilities across) Lessor's Property.inord-&Ab service the Premises and Lessee's Facilities. Lessor shall fully cooperate With any utility companyrequesting.an easement over, under and/or across the Lessors Property in order for the utility company to provide service to Lessee. Upon Lessee's request, Lessor shall execute recordable easement(s) to such utility companies. During any utility application period, Lessee shall have 1199-601 2 6 the right to use Lessor's electricity and shall pay Lessor the current local utility rate for electricity consumed by Lessee. In the. event Lessee cannot secure its own metered electrical'suppty, Lessee shall have the right, at its own expense, to submeter from Lessor (and in, such event, Lessee shall pay on a monthly basis the current local utility company rate for submetered electricity, after the meter is read By— Lessor l y Lessor and billed to Lessee). (c) Upon the expiration, cancellation ortermination .of this Lease, Lessee shall surrender the Premises to Lessor in sound condition, ordinary wear and tear and uninsured casualty excepted. a. Interference with Communications. Lessee's Facilities. shall not interfere with the communications equipment that 'exists on Lessors. Property on the Effective Date (°Pre-existing Communications"), and Lessee's Facilities shall comply with all non-interference rules of the Federal Communications Commission (°FCC°). Lessor shall not permit. the use of any portion of Lessor's Property to ariterfere with the communications operations of Lessee described in Paragraph 2, above or with Lessees Facilities. Suchinterference with Lessee's communications operations shall be deemed a material breach by Lessor, 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 shall cause. irreparable injury to Lessee; therefore; Lessee shall have the right to bring action to enjoin such interference or to terminate the Lease immediately upon notice to Lessor. Notwithstanding the foregoing, Pre-existing Communications operating 'in the same manner as on the Commencement Date:shali not be deemed interference. 9. ' Taxes. Lessee shall pay personal property taxes assessed against Lessee's Facilities, and Lessor shall pay when due, all real' property taxes and all other taxes, fees and assessments attributable to Lessor's Property, the Premises and this Lease. 1:0. Termination. This Lease may be terminated "without further liability on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant, condition, or tern hereof by the other party, which default is not cured within thirty (30) days of receipt of written notice of default; (ri) by Lessee for any reason, provided Lessee delivers written notice of termination to Lessor prior to the Commencement Date; (M) by Lessee if it does not obtain or maintain licenses, permits or. other approvals necessary. to the construction or operation of Lesseel's Facilities; or (iv). by Lessee If Lessee is unable'to occupy or utilize the Premises. due to a ruling or any directive of the FCC or other governmental or regulatory agency, including, but not limited to, a take back of°channels or change in frequencies; or (v) by Lessee "rf Lessee determines that the Premises .are, -not appropriate for its operations for economic, .environmental, or technological reasons (including without.'Jimitation, signal strength or interference). 11. Destruction of Premises:, if the Premises or Lessor's Property is destroyed or damaged so as in Lessee's judgment, to hinder its effective us'e bf Lessors Property, Lessee may elect to terminate this Lease as of the date of the damage or destruction byso notifying Lessor no more than thirty" (30) days following the date of damage or destruction. 1n. such ,event, all rights and obligations of the parties that do not survive the.termination'of this Lease shall cease as of .the date of the damage or destruction. 12. Condemnation. If a condemning authonty'takes 'all of Lessors Property, or a portion thereof which in Lessee's opinion is sufficient to render, the Premises unsuitable for Lessee's use, then this Lease'shall terminate 'as cif 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 dist cation 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. 13. -insurance. (a) Lessee shall maintain the following insurance: (1) Commercial General Liability with limits of $500,000.00 per occurrence; (2) Automobile Liability with a combined single limit of $1,000,000.00 per accident; (3) Workers Compensation as required by law,, and- (4) Employers Liability with limits of $1,000;000.00 per occurrence. Each party to this Lease shall each maintain standard form property 1199-001 insurance ('All RlsW 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'injury or loss due to hazards covered by their property insurance and each party shall require such insurance policies to contain an express waiver of recovery by way of subrogation against the other in connection with any damage covered by such insurance policies. Lessee shall name Lessor as an additional insured with respect to the above Commercial General Liability insurance. Lessee shall have the right to self -insure with respect to any of the above insurance. .(b) Lessee's Indemnity. Lessee shall defend, indemnify, hold and save Lessor harmless from and. against any and all loss, cost, liability or. damage. (including reasonable attorney's fees and court costs) arising by reason of the. willful :misconduct or •negligence of Lessee, or its officers, agents, or employees, in connection With the Premises, except to the extent ansing out of the willful misconduct or negligence of Lessor, or Lessor's officers; agents or employees. (c) Lessors Indemnity:.Lessor shall defend, Memnify, hold and save Lessee harmless from and against any and all loss, cost, liability or damage (includingreasonable attorney's fees and court costs) arising by reason of the ,w.iilhih misconduct or negligence of Lessee, or its officers, -agents, or employees, in connection. wftf -the Piemises, except to ttie.exterit arising out of the willful misconduct or negligence of Lessee; or Lessee's officers, agents or employees. (d) Survival. The foregoing indemnity in (b) and (c) will survive the termination, cancellation or expiration of. this Lease. 14. Assignment and Sublettina. Lessee. may sublease or assign this Lease at any time to any of Lessee's afdfietes. Any other sublease or. assignmenf requires Lessor's prior written approval which approval shall not be unreasonably withheld. Lessee warrants that any assignee of Lessee shall meet the financial responsibility requirements of the Federaf Communications Commission. 15. Title and QuietEnlovmem. (a) Lessor warrants that it has full right, power, and authority to execute this Lease. Lessor warrants that it solely owns Lessor's Property in fee simple as a legal lot in conformance with applicable zohirig requirements. Lessorfurther warrants that Lessee shaft have quiet enjoyment of the Premises during the Term of this Lease or any Extension Term. . (b) Lessee has the right to obtain a title report or commitment for a leasehold title policy from a tide insurance company of its choice. If, in the opinion of.L'essee; such title report shows any defects of fide or any liens or encumbrances which may adversely' affect Lessee's use of the Premises, Lessee shall have the right to terminate this Lease Immediately upon written notice to Lessor. (c) Deleted. 16. Repairs. Lessee;:shall not be required to make any repairs to the Premises except for damages to the Premises negligently caused by Lessee and/or its employees, agents, contractors and/or other representatives. 1. 17. Deleted. 18. Mutual Cooperation:. During the Teri, Lessor and Lessee hereby agree to cooperate with each other to reasonablyassist the other in complying, with applicable Federal, state and local laws, statutes and regulations including, but not limited to, those imposed by the 'Federal Communications Commission. Lessor.furthef agrees that it shall in good faith cooperate with Lessee in executing such other instruments reasonably requested by Lessee to resolve any adverse title matters without further consideration. The cooperafion.required under this paragraph shall not obligate the cooperating party to expend any sums beyond those otherwise required under this Agreement. 19. Miscellaneous. 1199-001 4 (a) If any provision of this Lease is invalid or unenforceable with'fespect to any party, the remainder of this Lease or.the appiication.of such provision to persons other than those as to whom l is held invalid or unenforceable, shall not be affected and each provision of this Lease shall be valid or enforceable to the fullest extent permitted by law. (b) This Lease shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (c) Any notice or demand required to be given herein.shall be made in writing by certified or registered mail, return receipt requested, confirmed fax, or reliable overnight mail_ to the address of the respective parties set forth below: Lessor: City of'Petaluma 15 English Street P. Q. Box 61 Petaluma, CA 94953-0061 Lessee: XM Satellite Radio Inc. 1500 Eckington Place NE Washington, OC 20002-2194 Attn: Mr. Joe Titlebaum Lessor or Lessee.magfrom time to time designate any other address for this purpose by written notice to the other party. — - (d) This Lease. shall be governed under the laws of the state -where the Premises are located without regard to conflicts of law. (e) belated. (f) Terns and conditions of this Lease that by their sense and context survive the termination, cancellation or expiration of this Lease'shail so survive. (g) Upon request, either party. may require that a Memorandum of Lease be recorded in the form of Exhibit "C". (h) Lessor shall be solely responsible for the payment of any commission or other compensation payable to any entitled real estate broker or agent in connection with this Lease. Lessor represents that it has deal with no real estate broker or agent'in connection with this Lease [other than _ N/A 1. (i) This Lease' constitutes the entire Lease and understanding between the parties, and supersedes all 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 to this Lease must be in writing and executed by both parties. I - IN WITNESS WHEREOF, the parties have executed this Lease as of the date first above written. 1199-001 ATTEST WITNESS A01 Signature Printed Name STATE OF COUNTY'OF By - _ fj-ss.c C' lT�1A14�f�'L Title q4 �� 3.q -a TAX ID#: Date: - — 13 G On before mg, personally appeared- personaliy:known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose nama(s) is/are subscribed to the within- instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that py his/her/their signatures) on the instrument the person(s), 'or the entity upon behalf of which the persons) acted, executed the instrument. WITNESS my hand and official seal. Signature: (Seal) My Commission Expires the _ day of _ t 1199-001 6 10 t ACKNOWLEDGEMENT CC§1181(g) STATE OF CALIFORNIA ) ) ss. COUNTY OF SONOMA ) On this fifteenth day of May, .2001, before me, Beverly L Kline, City Clerk of the City of Petaluma, pei sonally appeared Gene Beatty, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his anI prized capacity as Assistant City Manager of the City of Petaluma, and that by his signature on the instrument the entity upon behalf of which he .acted, the City of Petaluma, executed the instrument Beverly J.I' ' ity l rk City o Pe aluma ATTEST W ITNESS Signature . - Printed Name DS'Ignature '" rr r. Nom`®s _ Printed Name SAF WO CotHWOF - ColUATPA . LESSEE - XM Satellite Radio Inc. By ±L_ C 2J, -- Signature Printed Name KEN Title VjC K-WNz TFRFtE5iR� TAX ID #: Date: 3 - 23 --of On before me, AdPldnn-e M. CraW(eY personalty appeared V L i P to . personally known to. me (or proved,to me •on .the basis of satisfactory evidence) to be the person(s) whose name(s). is/are subscribed to the within. instrument and -acknowledged to me that he/she/they executed the sarine in his/her/their authorbEd capacity(ies), and that by his/her/their signatures). on the instrument the. person(s), or the entity upon behalf of which the person(s) acted, executed. the instrument. My Commission Expires 07/14/05 WITNESS my hand and -official seal. My Commission Expires the _ day of Signature: (Seal) 1199-001 7 12 EXHISM A LEGAL DESCRIP'nOtd OF LESSOR'S PROPERTY Lessors Property of which.the Premises are a part is legally described as follows: athe Mcdragwa i-" city of retains Sonoma- afters aeb, E'yi+'+4 1a thecity ranOf Petalt�a, township. ®.north, . ge . 7 was'' %.. 111.0. H. t. M. , and b91ag' a -pa*rcs'1 of ' i:aad more patticurarly described an followea Conmancing at,the eoutkwest cora®i of Parcel, 21 ficial ar:aecribed ib.:dee3 recorded .inlppot 1694 of Cf- ' 17ecnrds, page 685 And 486 , ­Sonoaa County f cords, dated September 1, 1959. ?hence -south 0.46'.40• east 55:00 Capt to a Poigt, SS - hence north .8,19'-weat 110..00 feet to a P'iutJ thence north "4.W 40° meet 155.00 feat to a point; thence South 88 i9 east. 110..00 feet to the north_ welt corner of Parcel 211 thaaco'ficu -said point south 0.46"40• seat 100.U0.•feet to the point of co""11013t'. containing .39 acres t.. . A-1 E s 13 EXHIBIT "B DESCRIPTION'OF PREMISES The Premises consist of those specific -areas described(shown• below_ The Premises and the associated utility connections and access, including easements, ingress, egress, dimensions, and locations as described/shown below are'=appro)imate only and may be adjusted or changed by Lessee at the time of construction to reasonably accommodate sound engineering criteria and the physical features of Lessor's Property. A final drawing or copy of a property survey depicting the above shall replace this ExhibiF'B° when initialed by Lessor, v �- Q. Extsbng tree A �l lY+onmae�.m np�Yy. sb �'ot d'P_oMswmi®Bb .ae'svtl Ur%II esiYy'ae6o bn lb`s lyys, ninEsr.ys/ �,y� 1sNOmrvdtq�j�gpp�y® srtl IM1m+bmnM1Ksh .�. AtLW �1P�. r.•srbce.'s,tl' �W^91�+mmj.vmy tioie MiYY tlmsm iWrs. Notes Existing l ExiSUm bulldl conmis slab. XM receive cffsklo be m0wded near.the top of Me wood pale. wth the . bmmn* aroma at B015' I&M, L tierone btdwhg 1. This Exhibit may be replaced by a land survey. of Site:Plan of the.Premises once jt is received by Lessee. Initial Here: "9" 2. The type, nunfbe�,'arid mounting positions and. locationsof antennas and transmissions lines are illustrative only.. Actual types, numbers, and mounting positions may vary from what is shown above. B-1 1199:-001 9 14 CITY OFWWOMAX-ALIFORNIA ;February ,20,.2001 AGENDA, REPORT FOR ANTENNA, SITE LEASE AGREEMENT EXECUTIVE SUMMARY'. The City cumV.1y. leasesianteiuiassites to private corrimunications rompames.-at the Hayes Lane Water Tgix&.-g'ite..'wdvenuefrom.ihese 1ea$q§jsuPp1qments the General Fund. XMRddio,has.a -J- ebd tb:a&VeLydar lease; wkht'wp (2) qteiyearektensions. Leases are - be approved Z required to 4p 4C .prov mtdiwnce4fthe-City -oww. 2. 11ACKGROUNW, The City's watetlmktsifpinear.Hayes Lane:1s situated to. as to be.attractive for placement. dfcommunicationsz&I s. Opohce-and-fiitTrildioantennas��haye-long.been positioned at.thi , M66-a'dion'. .. We':_cu rrebtly- l6dze_,p6rtions..oCf 'the site. to allow placement of radio antennas f6u, ft;V.­ate!com-p-a-nies, including tcUdW One. XM. Radio has exand.rehit U e site pppsse&interest in -adding an aptenfia.ed equipment to th and has agreed to . w0ve7year.1gase q3611t with agr(* tw4Y (2). &e -year extensions , (attached -consistsiof h kniill- -Ldish that Will be mounted on Their. equipm mierbWavei. .;nt ' a" eqwp ane*tingpoj� n 4iiii9hficht/power-cabinet. Thenewequipment wilinot extend }iigherthan'tlie existin&dquipmtht. Additiond.requests;are expected to be ' fo *'omihg,-)d4,WM.aI§6 hdVe'to secure a Use :Perrnit4f6r-pOfthis,eq 14qpment uipment. and has ap`led;to jit Cpnmunity,0kyelopment Dep Oforsuch-USe,. WOng with any potential environmental permits.iligit may'be required ,fiq Ar'Taft idasexalled for payment of V WO per :fti6nih,.w.iih!gp:aL�tomatic-'annuif,-j!-�o;#Oiuswfit;. At:ft Council-meetifig-,,ofNdvid6ber: 20.,.2000.;.jhq:C- qquelIntroduced the Those amendments i��,apor6vinig­the lea--se.-agrednieht. w _ it h changed the term -ofAhe4'easejp 11m. -Ly.' -ptqs:t)7KOeadd,i-tii)ndl.,.fiv6-Year- Idaseperiods with the k-dse,payni.entrto,lietrepegp(iaiecL It aLw M-0-MiddIthe'a-mitial rent increase to -CEI or:30/a,v�fii ' chever w&,uioie;.fder the first.yd-ar ofthel . dase. itAso increased the initial rent fo .00 per month. Tzhdjiipproval.of #iejea$p is, also. subject to site design approval that I Inc requires -hunmium viguA I' .im pact'of, heiinprovernePts. The.attabhed. lease agreement'includes those changes; El 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DATE ,: ORDINANCE �• I1 ORDINANCE NO. 2105 Introduced by Pamela Torhatt Seconded by Matt Maguire Attachment 3 AN ORDINANCE OF THE COUNCIL OF THE CITY OF PETALUMA AUTHORIZING A LEASE OF REAL PROPERTY LOCATED WITHIN THE CITY OF PETALUMA (XM Satellite Radio, Inc.) BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS 23 FOLLOWS: 24 25 Section 1. Certain real property located in the City of Petaluma, County of Sonoma, 26 State of California is hereby authorized to be leased under the terms and conditions set forth. 27 in the Site Lease Agreement by and between the City of Petaluma and XM Satellite Radio, 28 Inc., which Site Lease Agreement is attached hereto as Exhibit "A" and incorporated herein 29 by reference. The City Manager is hereby authorized to sign said Site Lease Agreement 30 which is for use as a mobiletwireless communications facility located at the La Cresta water 31 tank facility site further described in Exhibits "A" and `B" to the Site Lease Agreement. 32 33 Section 2. If any section, subsection, sentence, clause or phrase or word of this 34 ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a 35 court of competent jurisdiction, such decision shall not affect the validity of the remaining 36 portions of this ordinance. The City Council of the City of Petaluma hereby declares that it 37 would have passed and adopted this ordinance and each and all provisions thereof irrespective 16 Ord. 2105 N.C.S. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 of the fact that any one or more of said provisions be declared unconstitutional, unlawful or otherwise invalid. Section 3. The City Clerk is hereby directed to post this ordinance for the period and in the manner required by the City Charter. INTRODUCED and ordered posted/published this 20'h day of November, 2000. ADOPTED this 20* day of February, 2001 by the following vote: AYES: O'Brien, Healy, Torhatt; Maguire; Moynihan, Vice Mayor Cader-Thompson, Mayor Thompson NOES: None ABSENT: None Mayor ATTEST: A73 ORM City Clerk DEPUTY CLERK City Attorney ord 9/15/00 (f r k) 2 17 Ord. 2105 N.C.S. Attachment 4 (Exhibit A) Site ID:SFX205B FIRST AMENDMENT TO SITE LEASE AGREEMENT This FIRST AMENDMENT TO SITE LEASE AGREEMENT ("First Amendment") is made this day of 201_, by and between SIRIUS XM Radio Inc. fka XM Satellite Radio Inc, ("Lessee"), with a mailing address of 1221 Avenue of the Americas, 37th Floor, New York, NY 10020, and City of Petaluma, a municipal corporation, ("Lessor"). WITNESSETH: WHEREAS, Lessor and Lessee previously entered into that certain Site Lease Agreement dated February 20, 2001, (the "Agreement"); under and pursuant to the terms of which Lessee has the right to install, maintain, operate, repair, replace and remove the equipment at that certain building situated at 601 Hayes Lane, Petaluma, Ca. 94952 ("Building"), as more particularly described in the Agreement; and WHEREAS, Lessee desires to install additional equipment at the Building and Lessor has agreed to allow such installation subject to obtaining a Conditional Use Permit and SPAR amendment for the proposed equipment from the City of Petaluma Planning Division subject. WHEREAS, Lessor and Lessee desire to extend the Term of the Agreement and further amend the Agreement upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee hereby agree as follows: 1. Term, Paragraph 4 of the Agreement is hereby amended to provide that upon the expiration of the last Extension Term, the Agreement shall automatically renew for up to four (4) additional five (5) year terms (each an "Additional Extension Term"). upon the same terms and conditions as set forth in this Agreement unless Lessee notifies Lessor in writing of Lessee's intention not to renew this Agreement at least sixty (60) days prior to expiration of the then current Extension Term or Additional Extension Term. Upon the expiration, cancellation or termination of this Agreement, Lessee shall surrender the Premises to Lessor in sound condition, ordinary wear and tear and uninsured casualty excepted, however if Lessee shall remain in possession of the Premises beyond the expiration, cancellation or termination of this Agreement for up to 6 months. Such use shall be deemed a month-to-month use and the Lessee shall pay the sum of $500 in addition to the monthly Lease Fee in effect at the expiration of this Agreement. 2. Lessee Equipment. Lessor hereby agrees that Lessee shall have the right to install additional Equipment at the Building as listed and attached within "Exhibit C" to this Amendment ("Additional Equipment"), therefore Exhibit C is attached hereto which reflects a consolidated list of Lessee Equipment and Additional Equipment. Page 1 18 Site ID:SFX205S 3. Notice, The Agreement is hereby amended to provide that a copy of all notices sent to any party pursuant to Paragraph 19(c) of the Agreement shall be sent to the following addresses: Lessor. City of Petaluma 11 English Street P.O. Box 61 Petaluma, CA 94953-0061 To Lessee: SIRIUS XM Radio Inc. 1221 Avenue of the Americas 37'h Floor New York, NY 10020 Attn: General Counsel With a copy to: SIRIUS XM Radio Inc. 1500 Eckington Place NE Washington, DC 20002 Attn: Lease Administration 4. Unless otherwise defined herein, or the context otherwise clearly requires, terms defined in the Agreement shall have such meanings when used herein. 5. Lessor and Lessee agree that all other terms and conditions of the Agreement not otherwise inconsistent with this First Amendment shall remain in full force and effect by and between the parties. 6. Each of the parties represent and warrant that they have the right, power, legal capacity and authority to enter into and perform their respective obligations under this First Amendment. 7. This First Amendment will be binding on and inure to the benefit of the parties herein, their heirs, executors, administrators, successors -in -interest and assigns. 8. Effect of Amendment. Except as set forth herein, the remaining terms and condition of the Agreement are unaffected hereby and by their assent hereto, the parties hereby ratify and confirm the same. The parties affirm that this Amendment sets forth the entire agreement of the parties with respect to the subject matter hereof and all verbal or written agreements to the contrary are hereby superseded and shall be of no force and effect. In the event of any conflict between the terms and conditions of this Amendment and the terms and conditions of the Agreement, the terms and conditions of this Amendment shall control to the extent of any such conflict. Page 2 19 Site IO:SFX2059 IN WITNESS WHEREOF, the parties have executed this First Amendment as of the day and year first written above. CITY OF PETALUMA SIRIUS XM Radio Inc. a Delaware corporation By: By: &UtAtc L JGGnGP4' Title: Title: C'ewerE CCLc Date: Date: 6r Igi?o(3 Page 3 ?p k. d h. 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Page 4 38