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HomeMy WebLinkAboutAgenda Bill 04.A-Ord 02/03/20031 2': 3 4 5 6 7 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 37 38 39 40 41 42 43 44 45 f � ORDINANCE NO. 2143 N.C.S. Introduced by Seconded by r f Es AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING A LEASE AGREEMENT OF REAL PROPERTY LOCATED WITHIN THE CITY OF PETALUMA CINGULAR WIRELESS BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS: Section 1: Certain real property located in the City of Petaluma, County of Sonoma, State of California, is hereby authorized to be leased under the terms and conditions set forth in the Communications Site Lease Agreement by and between the City of Petaluma and Pacific Bell Wireless, LLC, a. Nevada 'limited liability company, d/b /a Cingular Wireless, which Communications Site Lease Agreement is attached hereto as Exhibit A and incorporated herein by reference. The City Manager .is authorized to sign said Communications : Site Lease Agreement which is for use as a Cingular Wireless Antenna and Transmitter location. Section 2: The City Clerk be, and she hereby is directed to post /publish this ordinance for the period and in the manner required by City Charter. INTRODUCED and ordered posted this 27"' day of January 2003. ADOPTED this day of 2003 by the following vote: AYES: NOES: ABSENT: ATTEST: Gayle Petersen, City.Clerk David Glass, Mayor APPROVED AS TO FORM: Rich Rudnaisky, City Attorney SITE NUMBER; SF- 427 -01 SITE NAME: 601 Hayes Lane CO MMUNICATIONS SITE'Y:LEASE AGREEMENT THIS' COMMUNICATIONS SITE LEASE .AGREEMENT ("Lease ") dated as of December 1, 2002, is between;Pacific <Bell Wireless,•.LLC, a: Nevada,liiiiited liability company, d/b /a Cingular Wireless ( "Lessee ") whose address is 4420 Rosewood Drive, Building 2, 3rd Floor, Pleasanton, California 94 :588, and the City of Petaluma, a Municipal Corporation C "Lessor ") whose address is 11 English Street, P.O. Box 61, Petaluma, California 94953. The parties hereto agree as follows: 1. Premises Lessor, represents; that ;Lessor, own& the real property, legally described in Exhibit-"N' commonly known as 601 Hayes Lane Petaluma, California 94953'. (Assessor's Parcel Number) 008 - 490 -04. Subject to the following terms•, "and conditions, Lessor leases to Lessee that.portion of Lessor's property ( "Lessor's Property") depicted in Exhibit "B", including any applicable ^easeinents for access and - utilities (the "Premises "). 2. Use. The Premises may be used by Lessee for any lawful activity in connection with the provisions of mobile /wireless communications services, including without limitation; the transmission and the reception of radio communication signals on various frequencies and the construction; 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 licenses, permits and any and all othermecessary approvals that may required for Lessee's intended use of the Premises. 3. Condition Precedent This Lease is conditioned upon Lessee, or Lessee's assigns, obtaining all governmental licenses, . permits and' approvals enabling Lessee, or its assigns, to construct and operate mobile /wireless communications facilities on the Premises. 4. Term The term of this Lease ( "Term ") shall be Five (5) years commencing upon a "Commencement Date" which shall :be the earlier of the date'of issuance , 4 a local building permit allowing Lessee to construct its Lessee's Facilities (as defined below) on the Premises, or July 1, 2003, (the "Outside Commencement Date ") and terminating on the last .day of the month in which_, the fifth (5` anniversary of the Commencement Date occurs. This Lease maybe •extended', 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 setforth in this Lease, unless Lessee notifies Lessor in writing of Lessee's intention not to renew this Lease at least ninety (9,0) days prior to expiration of the then current Term or Extension term, provided; however, that monthly Rent for Extension Terms shall be negotiated by the. parties prior to the commencement of any Extension Ter n,.,and upon the failure of the parties to agree on such monthly Rent, either party may terminate this Lease as"of the, end of the .then current Term or Extension Term. 5. Rent Upon the Commencement Date, Lessee shall,pay.Lessor; as rent; the sum of Fifteen Hundred Dollars ($1;500.00) ( "Rent") per month with an annual adjustment upon the anniversary date of the agreement to increase a minimum of`Three (3 %) percent of the rent of the previous year or equal to the annual percentage increase in the Bay Area Consumer Price`Index; whichever is greater: Rent shall be payable on the 1st day of each month, in _advance, to Lessor at Lessor's address specified at thebeginning of this Lease. Commencement Date is other than the first day of a .calendar month, Lessee may pay on the first day of the Term p ro ed 1f the th 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 if any or if this Lease is terminated before the expiration of any month. 6. lmprovements Access (a) 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 and engineering surveys (and soil tests where 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 construction of Lessee's' Facilities. During any Tests or pre- construction work, Lessee will have insurance as set forth in Section 12; Insurance Lessee will notify Lessor of any proposed Tests or pre- construction work and will coordinate the scheduling of same 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. SITE NUMBER: SF- 427 -0.1 SITE NAME: 601 Hayes Lane (b) Lessee has the right to construct, 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 antennae and supporting structures and improvements ( "Lessee's Facilities "). In connection therewith, Lessee has the right to do_ all work necessary to prepare, add, maintain and, alter the Premises for L'essee's communications operations and to install utility lines and tran smission lines connecting antennas to transmitters and receivers. 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 construction and installation work shall be performed at Lessee's sole cost and expense and in a good and workmanlike manner: 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 has the ri ght to remove any or all of Lessee's Facilities at its sole expense on or before the .expiration of this Lease or within sixty (60) days after an early termination of this Lease. (c) 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 construct, maintain, install and operate Lessee's Facilities on the Premises, and to remove them therefrom. Lessee's exercise of such 'rights shall not cause undue inconvenience to Lessor or interfere with the quiet use and enjoyment-of adjacent premises by other lessees of Lessor. (d) Lessor shall maintain all access roadways from the nearest public roadway to the Premises in. a manner sufficient to allow reasonable 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 shall promptly repair same. (e) 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. Upon Lessee's request, Lessor shall execute recordable easement(s) evidencing this right. (f) Lessee shall fully and promptly pay for all utilities furnished to the Premises for the use, operation and maintenance of Lessee's Facilities. (g) Upon the expiration, cancellation or termination of this Lease, Lessee shall surrender the Premises to Lessor in good condition, less ordinary, wear and tear. 7. 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 4n Paragraph 2, above. Such interference 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 will. 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 the 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. With the exception of Lessor's uses and the communications configurations, equipment and frequencies of Lessor or its lessees, that exist on Lessor's Property, on the Commencement Date subsequent to the date of this Lease, Lessor shall not use its Property or permit its lessees, 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, 8. Taxes Notwithstanding the foregoing, Lessee shall reimburse Lessor for that portion of any increase in real property taxes which is based upon Lessee's improvements to the Premises. As a condition of Lessee's obligation to pay such tax increase, Lessor shall provide to Lessee the documentation from the taxing authority, reasonably acceptable to Lessee, indicating the increase is due to Lessee's improvements. SITE NUMBER:, SF- 427 -01 9.. Terriunation SITE NAME: 601 Hayes Lane (a) 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. (b) ' 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 obtaii +or maintain any. certificate, 1,icense,permit, authority or approval from any governmental authority, thus, .restricting Lessee from installing, removing, replacing, g or operating g maintaining eratin Lessee's Facilities or usin the. Premises in the manner described in Paragraph 2 above; P 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. 10. Destruction of Premises If'Lessee should identify an alternate location on Lessor's property which would allow Lessee to reinstitute or continue its operations on a temporary basis and provided that Lessor determines that it will repair the damage, Lessor shall reasonably cooperate with Lessee in. allowing such a temporary relocation while the repair work is underway, provided that Lessor reserves the right in its sole discretion to disapprove a proposed temporary location if it would materially interfere with Lessor's repair work or redevelopment plans for Lessor's Property. 11. 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 condemning authority. .12. Insurance Lessee shall maintain the following insurance: (1) Commercial General Liability with limits of $5,000,000.00 per occurrence, ,covering Lessee's use, occupancy and operations on the Premises; (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 -naive 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. 13. Assigmmment. Lessee may assign this Lease or sublease the Premises at any time without Lessor's to (i) y p parent on with any financing, loan, security interest, pledge, or i mortga f ge o Less property. Any other ass in shall' require Lessor's prior written approval, which approval shall not be unreasonably withheld delayed, or conditioned. Lessee warrants that any assignee of Lessee shall' meet the financial responsibility requirements of 'the Federal Communications Commission. 14. Lessee's .Indemnification of L' essor. Lessee .shall defend, indemnify, hold and save harmless Lessor, its officers, employees and, agents, from and against any and all loss, cost, liability, claims or damages (including reasonable aftorney'sl fees and, court costs) incurred or arising by "reason of the willful misconduct or negligence of Lessee or its officers, agents, or employees, arising out of or in-connection with Lessee's use of the Premises pursuant to this Lease. 15. Title and QuietEnioyment SITE NUMBER: SF- 427 -01 SITE NAME: 601 Hayes Lane (a) 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 hasaaken all necessary action to enable Lessor to 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; licensees and occupants of Lessor's Property. (b) Lessee has thexight to- obtain a title report or commitment for a leasehold title ; policy from a title insurance company .. of its choice. 'If;_ in the opinion of. Lessee, such title report shows any defects of title or any liens or encumbrances, which. may adversely affect, Lessee's use of the Premises,, Lessee shall have the right to, within forty (40) days after the date of this Lease, to terminate this Lease immediately by giving notice t6 Lessor. 16. & - airs. Lessee shall not be required to make any repairs to the Premises except for damages to the Premises caused by Lessee, its employees, agents,. contractors or subcontractors. 17. Environmental Lessor represents, to the best of its: knowledge without the °duty of conducting any investigations, that the Premises have not been used for the generation, storage, treatment'or disposal of hazardous materials, ;hazardous substances or hazardous. wastes. In;addit on, , Lessor represents that no hazardous materials, hazardous substances„ hazardous wastes; pollutants, asbestos, polychlorinated biphenyls (PCBs) petroleum or .other.fuels (including crude oil or any fraction or derivative thereof) or underground ;storage tanks are located on or near the Premises.. Notwithstanding any other provision of this Lease Lessee:, relies, upon the representations stated herein as a material inducementfor entering into this Lease. 18. Miscellaneous Delivery of notices shall be in writing and. shall be given by hand or by certified or registered, mail, return receipt requested, orby reliable overnight courier and shall be delivered to Lessee, Attn:,Property Manager; with;a copy to Cingular, Wireless, .600 Atlantic Boulevard Norcross, GA 30071 Attn: Network Real Estate' , arid , to Lessor, Attn: City Nlanager 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. 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 substantially'preyailing party in any legal claim arising hereunder shall be entitled to its reasonable attorney's fees and court costs, including appeals, if any. Lessor. .shall obtain for the benefit of Lessee a reasonable Non - Disturbance Agreement from the present and any future mortgagee(s) or holder(s) of a deed of trust confirming that Lessee's right to quiet possession of the, Premises duringthis Lease shall- not-be disturbed, so long as Lessee is not in default under this Lease. 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, or expiration of this Lease will so survive. 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. Upon request either party may require that a Memorandum of Lease be recorded confirming the (i) Lease commencement,, (ii) :expiration date of the Term, and, (iii) the duration of any Renewal Terms. 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 not set forth herein. Any amendments, modifications or waivers of any of"the terins and conditions of this Lease must be in writing and executed by both parties. SITE NUMBER: SF= 427 -01 SITE NAME: 601 Hayes Lane IN WITNESS WHEREOF, the parties hereto have executes this agreement the day and year first above written. CITY OF PETALUMA APPLICANT CINGULAR WIRELESS, LLC its agent City Manager ATTEST: City Clerk APPROVED AS TO FORM: City Attorney APPROVED: Department Director APPROVED: Risk Manager APPROVED:' I-A Name: Title: Tax ID: Date: Finance Director SIZE NUMBER: SrrE NAME: EXHIBIT A LEGAL DESCRIPTION OF LESSOR'S PROPERTY Lessor's Property of WM6 Premises are a part is legally described as follows: THIRD 'TRACT LYING in the City of Petaluma, Township North, Range ,7, West, M. D. B. & M., and being more particularly described as follows: COMMENCING at the southwest ,corner of Parcel 21, as described in Deed dated September 1, 1959, and recorded in Book 169.4 of Official, Records, pages 485; ;and 48:6, Sonoma County 'Records; thence South 0 46' 40" East, 55.00 feet to a point; thence North 88' 19''West,, 110..00 feet to a point; thence North,0 4;6 40 West, 155.00 feet to a point; thence South 88 19" East, 110.00 feet to the northwest corner of Parcel 21; thence_ from said point; South 0 46' 40 East, 100.00 feet to the point of commencement. 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