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Home My WebLink AboutAgr 2004-11-04 (MERA) if 0'1) ( COOPERATIVE AGREEMENT CONCERNING FEASIBILITY ANALYSIS OF WOLFBACK RIDGE SITE This Cooperative Agreement Concerning Feasibility Analysis of Wolfback Ridge Site ("Agreement") is entered into by and among the Marin Emergency Radio Authority ("MERA") and the Town of Tiburon ("Tiburon") as of November 4, 2004, with reference to the following facts: RECIT ALS A. MERA is the owner of certain real property in Tiburon, California described more particularly on Exhibit A hereto and known as the Mt. Tiburon Site (the "Mt. Tiburon Site"). MERA is in the process of installing a radio telecommunications facility (the "Facility") for the purpose of providing emergency radio communications to Southern Marin County (as defined more particularly below). B. Tiburon has requested that MERA consider relocating the Facility at some point in the future to an alternative site located in unincorporated Marin County described more particularly on Exhibit B hereto and known as Wolfback Ridge (the "W olfback Ridge Site"), and has offered to pay the costs of a feasibility study. C. MERA has agreed to undertake a feasibility study to determine if the W olfback Ridge Site can be engineered and licensed as a single site that replaces the Mt. Tiburon Site by providing coverage to Southern Marin County equivalent to, or greater than, the coverage provided by the Facility at the Mt. Tiburon Site as guaranteed and warranted by Motorola for the whole MERA system. D. If the feasibility study determines that the Wolfback Ridge Site can replace the Mt. Tiburon Site in the manner described by Recital C for a cost not to exceed $900,000, the parties agree to make a good faith effort to negotiate a written agreement providing for the relocation of the Mt. Tiburon Site to the W olfback Ridge Site. NOW, THEREFORE, in consideration of the mutual covenants contained herein, , the parties agree to the following: AGREEMENT 1. Recitals. The parties acknowledge the Recitals above are true and correct and are hereby incorporated into this Agreement as if fully set forth below. -1- I~ L(_(lLj ..11 L/ 7/ Tiburon Feasibility Agmt 12-10-04.doc 2. Feasibility Study. (a) MERA shall cause a feasibility study (the "Feasibility Study") to be conducted by Motorola, Inc., its contractor under that certain Agreement between Marin Emergency Radio Authority and Motorola, Inc. ("Motorola") dated as of December 17, 1998 (the "Motorola Agreement") to determine whether, in Motorola's professional judgment, the W olfback Ridge Site can be engineered and licensed by the FCC as a single site that provides coverage to Southern Marin County equivalent to, or greater than, the coverage provided by the Facility at the Mt. Tiburon Site as guaranteed and warranted by Motorola under the Motorola Agreement. For the purposes of this Agreement, "Southern Marin County" shall mean the area served by the Mt. Tiburon Site as contemplated by the Motorola Agreement. Motorola shall determine, in its professional judgment, which studies and cost analyses shall be included in the Feasibility Study. The Feasibility Study shall be completed and provided to MERA and Tiburon by December 31,2004. (a) Tiburon shall reimburse MERA for the costs of the Feasibility Study in an amount not to exceed the sum of$23,961 within fifteen (15) days of receiving a written invoice for such costs. Such costs will not include the time of the MERA Executive Officer Martin Nichols and MERA Engineer Richard Chuck, who shall cooperate with Motorola in producing the Feasibility Study. In no event shall MERA be required or obligated to contribute any funds to the completion of the Feasibility Study. 3. Ongoing Construction of Facility at Mt. Tiburon Site. (a) MERA may exercise and shall retain all rights to cause the construction of the Facility at Mt. Tiburon Site during the course of this Agreement. (a) Tiburon agrees to not interfere with the construction of the Facility at the Mt. Tiburon Site by MERA. 4. Analysis of Feasibility Study. (a) If, in the professional opinion of Motorola, the Feasibility Study demonstrates that the relocation of the Facility to the Wolfback Ridge Site can be engineered and licensed by the FCC as a single site that provides coverage to Southern Marin County equivalent to, or greater than, the coverage provided by the Facility at the Mt. Tiburon Site as guaranteed and warranted by Motorola under the Motorola Agreement, and the estimated costs of such relocation will not exceed $900,000, the parties shall make a good faith effort to negotiate a relocation agreement within thirty (30) days after such determination is made. Tiburon Feasibility Agmt 12-10-04.doc -2- (b) If, in the professional opinion of Motorola, the Feasibility Study demonstrates that the relocation of the Facility to the Wolfback Ridge Site cannot be engineered and licensed by the FCC as a single site that provides coverage to Southern Marin County equivalent to, or greater than, the coverage provided by the Facility at the Mt. Tiburon Site as guaranteed and warranted by Motorola under the Motorola Agreement, then Tiburon agrees to accept that determination. 5. Miscellaneous (a) This Agreement may be modified or supplemented only by a written agreement of the parties. No waiver shall be effective unless it is in writing. (b) The parties acknowledge they are not partners or co-venturers under this Agreement in either the Feasibility Study or the relocation of the Facility (c) There shall be no third party beneficiaries of this Agreement, including but not limited to the homeowners in the vicinity of the Mt. Tiburon Site. (d) This Agreement shall in all respects be interpreted, enforced, and governed by and under the laws of the State of California. (e) In the event that any party shall bring an action to enforce its rights under this Agreement, the prevailing party in any such proceeding shall be entitled to recover its reasonable attorneys', witness and expert fees and costs of the proceeding, including any appeal thereof. (f) Time is of the essence in the performance of all obligations hereunder. (g) All notices and demands under this Agreement shall be given in writing by certified mail, postage prepaid, and return receipt requested, by personal delivery or by overnight courier. Notices shall be considered given upon the earliest of a (a) personal delivery; (b) two (2) business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested; or (c) one (1) business day following deposit with an overnight courier. Notices shall be addressed as provided below for the respective party; provided that if any party gives notice in writing of a change of name or address, notices to such party shall thereafter be given as demanded in that notice. Tiburon Feasibility Agmt 12-1 0-04.doc -3- Tiburon: J"l {1!,1i}m~n"ld / - (! fl(lhh, {1:( 4'<-11L/1 JQ)5 J,'u~t-:> ~\.\)~, ':11~~ ~ rA- G&.t~1.o , MERA: (h) This Agreement may be executed in identical counterpart copies, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. IN WITNESS WHEREOF, MERA and Tiburon have entered into this Agreement as of the day and year first above written. MARIN EMERGENCY RADIO AUTHORITY, ajoint powers authority existing under the laws of the State of California TOWN OF TIBURON, a municipal corporation By: Its: ~~i~ Clean Copy ofMERA_Tiburon Feasibility Agreement2.DOC EXHIBIT A Description of the Mt. Tiburon Site The site is located off Mt. Tiburon Drive in the Town of Tiburon. Approximately 1.1 acres in size and owned by MERA, it is located on the Mount Tiburon Ridge of the Tiburon Peninsula between Gilmartin Drive and Place Moulin/Sugar Loaf Drive. Access is via a paved driveway down slope from Mt. Tiburon Drivel Mt. Tiburon site is an MMWD water storage site. The site is a graded pad improved with a water storage tank and pumping facility situated on the south facing slope of Mt. Tiburon Ridge. Tiburon Feasibility Agmt 12-10-04,doc -5- EXHIBIT B Description of the W olfback Ridge Site Assessor Parcel Number 200-120-02. The existing commercial broadcast site is located approximately 3/8-mile west of US Highway 101 on W olfback Ridge Road west of Sausalito. Owned by Sundial Broadcasting Corporation. Tiburon Feasibility Agmt 12-10-04,doc -6-