HomeMy WebLinkAboutOrdinance 2105 N.C.S. 02/20/20011
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Introduced by
Pamela Torliatt
ORDINANCE NO. 2105 N.C.S.
Seconded by
Matt Maguire
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
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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 Site Lease Agreement by and between the City of Petaluma and XM Satellite Radio,
Inc., which Site Lease Agreement is attached hereto as Exhibit "A" and incorporated herein
by reference. The City Manager is hereby authorized to sign said Site Lease Agreement
which is for use as a mobile/wireless communications facility located at the La Cresta water
tank facility site further described in Exhibits "A" and `B" to the Site Lease Agreement.
Section 2. If any section, subsection, sentence, clause or phrase or word of this
ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Petaluma hereby declares that it
would have passed and adopted this ordinance and each and all provisions thereof irrespective
Ord. 2105 N.C.S.
I of the fact that any one or more of said provisions be declared unconstitutional, unlawful or
2 otherwise invalid.
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4 Section 3. The City Clerk is hereby directed to post this ordinance for the period and
5 in the manner required by the City Charter.
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INTRODUCED and ordered posted/published this 201h day of November, 2000.
ADOPTED this 20th day of February, 2001 by the following vote:
AYES: O'Brien, Healy, Torliatt, Maguire, Moynihan, Vice Mayor Cader-Thompson, Mayor Thompson
NOES: None
ABSENT:None
ATTEST:
City Clerk DEPUTY C ' CLERX
ord
9/15/00 (fmk)
96X --
Mayor
APPRO �TORM:
City Attoir ey
2
Ord. 2105 N.C.S.
70 `t. -- o
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, 'California ("Lessor's Property"). Subject to the following terms and
conditions, Lessor leases to Lessee that portion of Lessor's 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 earlier 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
2001, 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 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 this Lease at least ninety (90) days; "prior to.expiration of the
then current Term or Extension Term. Monthly rent for extension terms shall be negotiated by the
parties prior to commencement of, any extension terms.
5. Rent. Commencing on ,the Commencement Date, Lessee 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 (1s) day of each month, in advance, to Lessor'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 Commencement 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 (1 s') 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 (i) for the purpose of conducting
1199-001
inspections, surveys, and tests (including, but not limited to, environmental surveys, engineering tests,
and soil and drainage tests) (collectively, "Tests") and ,(ii) 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 approvals, special use permits and construction permits); and (B) to otherwise
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 Facilities (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 proposed 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 Deposit").payable in additionto rent. During. the Effective Period, if -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 suitable 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 the -,terms and conditions in this Lease.
(b) Lessee shall_,have the right to construct, .maintain, replace, upgrade, test.and operate on
the Premises communications facilities, including but not limited to, radio frequency transmitting and
receiving equipment, batteries; utility fines, transmission lines, radio frequencytransmitting and receiving
antennas and supporting structures. 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 communicationsoperations 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 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. 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 arising 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 "Lenders") 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.
7. 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 tear and uninsured casualty excepted. Lessor shall maintain all access roadways
from the nearest public ,roadway 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 shall promptly repair
same.
(b) Lessee, at Lessee's option, 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 equipment). 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. Lessor shall fully cooperate
with any utility company requesting an easement over, under and/or across the Lessor's 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
1199-001 2
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 supply, 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 U
Lessor and billed to Lessee).
(c) Upon the expiration, cancellation or termination of this Lease, Lessee shall surrender the
Premises to Lessor in sound condition, ordinary wear and tear and uninsured casualty excepted.
8. Interference with Communications. Lessee's Facilities shall not interfere with the
communications equipment that exists on Lessor's. 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 :interfere with the communications operations of Lessee described in Paragraph 2, above or
with Lessee"s Facilities. 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 shall cause irreparable injury to Lessee; therefore, Lessee shall have the right to
bring action to enjoin such interference or to terminate the Lease rimmediately upon notice 'to Lessor.
Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the
Commencement Date shall 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.
10. 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 term hereof
.by, the other party, which default is not cured within thirty (30) days of receipt of written notice of default;
(ii) by Lessee for any reason, provided Lessee delivers written notice of termination to Lessor prior to the
Commencement Date; (iii) by Lessee if it does not obtain or maintain licenses, permits or other approvals
necessary. to the construction or operation of Lessee'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 ofchannels or change in frequencies; or (v)
by Lessee if Lessee determines that the Premises are not appropriate for its operations for economic,
environmental, or technological reasons (including without,'limitation, 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 use of Lessor's Property, 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. `In. 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 authority -takes all of Lessor's 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 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 shallinclude 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.
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). Employer's Liability with limits of
$1,000,000.00 per occurrence. Each party to this Lease shall each maintain standard form property
1199-001
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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 injury or loss due to hazards
covered by their property insurance and. each parry 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 arising out of the willful misconduct or
negligence of Lessor, or Lessor's officers, agents or employees.
(c) Lessor's Indemnity: Lessor shall defend, indemnify, hold and save Lessee harmless from
and against any and all loss; cost, liability or damage (including reasonable attorney's fees and court
costs) arisingby reason of- the willful misconduct or negligence of Lessee, or its officers; agents, or
employees, in connection.with,-the Premises, except to the. extent 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 Subletting. Lessee may sublease or assign this Lease at any time to
any of Lessee's affiliates. Any other sublease or assignment 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 Federal'Communications Commission.
15. Title and Quiet Enioyment.
(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
zoning requirements. Lessor further warrants that Lessee shall 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 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 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.
17. Deleted.
18. Mutual Cooperation.. During the Term, Lessor and Lessee hereby agree to cooperate
with each other to reasonably assist 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 further 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 -cooperation. required under this paragraph shall not obligate the cooperating party to
expend any sums beyond those otherwise required under this Agreement.
19. Miscellaneous.
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(a) If any provision of this 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 or
enforceable to the fullest extent permitted by law.
(0) 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. 0. Box 61
Petaluma, CA 94953-0061
Lessee: XM Satellite Radio Inc.
1500 Eckington Place N E
Washington, DC 20002-2194
Attn: Mr. Joe Titlebaum
Lessor or Lessee may from time to time designate any other address for this purpose by written notice to
the other party.
(d) This Leaseshall be governed under the laws of the state where the Premises are located
without regard to conflicts of law.
(e) Deleted.
(f) Terms and conditions of this Lease that by their sense and context survive the
termination, cancellation or expiration of this Lease -shall 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 dealt with no real estate broker or agent'in connection with this Lease [other than _
N/A 1.
O 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.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first above written.
1199-001
ATTEST WITNESS
e)Siglnay ,
1 /`_ Yl n k- Y S)( )A /1)rZ 1 k1 n
Printed Name
Signature
Printed Name
STATE OF
COUNTY"OF
LESSOR — i ot,,Petaluma
BY: _
Signature
0 JSZ -7
Printed Name
ss . e kiY VMA'UV
Title
TAX ID#:
Date: - 'I— I s' nl
On before me, personally appeared
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 same in his/her/their authorized 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.
WITNESS my hand and official seal
Signature:
(Seal)
My Commission Expires the _ day of
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k
ACKNOWLEDGEMENT
CC§1181(g)
STATE OF CALIFORNIA )
) ss
COUNTY OF SONOMA )
On this fifteenth day of May, 2001, before me, Beverly J. Kline, City Clerk of the City of Petaluma,
personally 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
authorized 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.
c
Beverly J. Kl' e, �'ity, lrk
City o eyaluma-
ATTEST WITNESS
Signature . .
Printed Name
Signature
Printed Name
aT F1,"1V1C E-
CO]idTY OF COAU_iM
LESSEE o XM Satellite Radio Inc.
By: L-
Signature
Printed Name
KEG AIK���
EN
Title IC
T F �Fi�S FtO AL S
TAX ID #:
Date:
On�'- Z1-O&I before meM. Crowley personally appeared
ILUA FFhkP./o , personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose names) is/are subscribed to the within_ instrument and'acknowledged to me
that he/she/they executed the same in his/her/their authorizedcapacity(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.
WITNESS my hand and,official seal.
Signature:
My Commission Expires 07/14/05
My Commission Expires the _ day of
(Seal)
1199-001. 7
EXHIBIT A
LEGAL DESCRIPTION OF LESSOR'S PROPERTY
Lessor's Property of which .the Premises are a part is legally described as follows:
alo'ft`�'P'"P"'Yz"'m eathg City of Petaluma
coney of Sonoma. of Cal fe
Lying in the city of Petaluma, township 4 north,
range.7 wes't,'M.D.B.& m., and being,a parcel of
land more particularly described as followsi
Coamencing at,.the southwest corner of Parcel 21 as .-described in deed recorded in `Book 1604 of of-
ficial Records, page 485 and 486, Sonoma County
Records, dated S;Pteaiber 1, 1959.
Thence -south 00469400 east 55.00 feet to a points
thence north 88°19' west" 110.00 feet to a paintj
thence north 0046140P west 155.00 feet to a points
thence south 88919' east 110.00 feet to the north-
west corner of Parcel 21s thence from said point
south 0°4 1 40® east 100.00 feet to the point of
commencement, containing .39 acres t..
A-1
1199-001
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 approximate 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 Exhibit' "Ba when
initialed by Lessor,
Q
Existing tree
A
Q
J
�CC
RLENAME
SFX2os Petaluma
Water
UESCRtPMON
OMWN BY
DATE
4
This axftlblt may be repfaaed by a
law survey or
site. plan Ot the promises once it is
recelved by,XM safeilHe-Ramo I=
The hype. number, and rtwun , Positions
erNl locations of antennas
and
bansmission Unes are Itiustretive only.
Actuaftypes. numbers, am
mounting positions may,varyIrao
whet Is shown shove.
Existing fence
Existing wood pole
Existing building
1 XM
Proposed Wcabinet
location, near existing
wood pole, on a 61xs,
concrete slab. XM
receive dish.,to be
mounted near the top of
the wood pole, with the
transmit antenna at
thel ievet.
Access road
Cellular One building
Notes
1. This Exhibit maybe replaced by a land survey or Site Plan of the Premises
once it is received by Lessee. Initial Here: t�ir
ti
2. The type, number, and mounting positions and. locations of antennas and transmissions lines are
illustrative only: Actual types, numbers, and mounting positions may vary from what is shown above.
1199-001
B-1
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