HomeMy WebLinkAboutAgr 1997-06-24 (Sprint Spectrum)r -2V- 97
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PCS SITE AGREEMENT
Page 1 of 4 with Exhibits A - C
Site Name Tiburon Town Hall Site I.D. No. FS-04-400
1. Property and Use. The Town of Tiburon
("Owner") is the owner of the real property and
improvements described in Exhibit A ("Property") and
hereby leases to Sprint Spectrum L.P., a Delaware
limited partnership ("SSLP"), the site described below:
--An area measuring 117' X 7'3 or 83.98 square feet,
located in the Town Hall building located on the
Property, for the placement of PCS equipment;
Building exterior space for attachment of antennas;
Space required for cable runs to connect PCS
equipment and antennas;
all in the location(s) on the Property more particularly
described on Exhibit B ("Site") together with a non-
exclusive easement for access thereto and to the
appropriate, in the discretion of SSLP, source of
electric and telephone facilities. The Site will be used
by SSLP for the purpose of installing, removing,
replacing, maintaining and operating, at its expense, a
personal communications service system facility
("WS"), including, without limitation, related antenna
equipment and fixtures. SSLP will use the Site in a
manner which will not unreasonably disturb the
occupancy of other authorized users of the Property..
Owner agrees to permit SSLP free ingress and egress
to the Site to conduct such surveys, structural strength
analysis, subsurface boring tests and other activities of
a similar nature as SSLP may deem necessary at the
sole cost of SSLP.
2. Term. The term of this Agreement (the "Initial
Term") is five years, commencing on the earlier of (a)
the date which is 30 days after the issuance of a
building permit for installation of the PCS or (b) the
first day of the month following commencement of
construction of the PCS ("Commencement Date").
This Agreement will be automatically renewed for three
(3) additional terms (each a "Renewal Term") of five
years each, unless SSLP provides Owner notice of
intention not to renew not less than ninety days prior to
the expiration of the Initial Term or any Renewal Term.
SSLP agrees that it shall not decline to exercise a
Renewal Term for the purpose of relocating the PCS to
a property which offers a lease with lesser rent than is
provided in this Agreement.
3. Rent. Rent will be paid annually in advance
beginning on the Commencement Date and on each
anniversary of it. The annual rent will be $24,000.00,
partial years to be prorated. The annual rent due
hereunder will be increased on each anniversary of the
Commencement Date to an amount equal to the
amount of the annual installment of rent payable during
the preceding year, increased by the percentage change
in the CPI during such year. "CPI" means the
consumer price index- U.S. city average for urban
wage earners and clerical workers (1982-84=100)
published by the United States Department of Labor,
Bureau of Labor Statistics (or a reasonably equivalent
index if such index is discontinued). In no event will
the amount of the annual installment of rent due under
this Agreement following such adjustment increase by
an amount less than four percent (4%).
4. Title and Quiet Possession. Owner represents and
agrees (a) that it is the Owner of the Site; (b) that it has
the right to enter into this Agreement; (c) that the
person signing this Agreement has the authority to sign;
(d) that SSLP is entitled to access to the Site at all
times during normal business hours, and upon
reasonable notice and in the case of an emergency at all
other times, and to the quiet possession of the Site
throughout the Initial Term and each Renewal Term so
long as SSLP is not in default beyond the expiration of
any cure period; AMU (e) that Owner shall not have
unsupervised access to the Site or to the PCS
equipment, except that Owner may access the Site in
the case of an emergency situation which poses a threat
of injury to persons or material damage to, property,
and in such event Owner will provide SSLP as much
prior notice as is reasonably possible under the
circumstances,' and in any event will give notice to
SSLP within twenty-four (24) hours after such access.
5. Assignment/Subletting. SSLP will not assign or
transfer this Agreement or sublet all or any portion of
the Site without the prior written consent of Owner,
which consent will not be unreasonably withheld,
delayed or conditioned; provided, however, SSLP may
assign or sublet without Owner's prior written consent
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PCS SITE AGREEMENT
Page 2 of 4 with Exhibits A - C
Site Name Tiburon Town Hall
Site I.D. No. FS-04-400
to its general partner or any party controlling,
controlled by or under common control with SSLP or
to any party which acquires substantially all of the
assets of SSLP.
6. Notices. All notices must be in writing and are
effective when deposited in the U.S. mail, certified and
postage prepaid, to the address set forth below or as
otherwise provided by law.
7. Improvements. SSLP may, at its expense, make
such improvements on the Site as it deems necessary
from time to time for the operation of a transmitter site
for wireless voice and data communications. Owner
agrees that in its proprietary capacity, it will cooperate
with SSLP with respect to obtaining any required
zoning approvals or other governmental approvals or
permits for the Site and such improvements, which
cooperation may include but not be limited to
executing a recordable notice of SSLP's conditional use
permit and/or a notice of special restrictions, as may be
required by governmental authority. Owner's
cooperation will not extend into its regulatory capacity,
and insofar as Owner's regulatory capacity is called
upon to process, consider and issue or deny such
approvals or permits, Owner shall do so utilizing its
normal standards and procedures. Upon termination or
expiration of this 'Agreement, SSLP shall remove its
equipment and improvements and will restore the Site
to the condition existing on the Commencement Date,
except for ordinary wear and tear.
In connection with SSLP's improvements at the
Property, Owner desires to install a new emergency
generator for use by Owner at the Property. In
connection therewith, SSLP, through one of its agents
or contractors, will cause to be prepared appropriate
design plans and schematics detailing the modifications
to the Property's electrical system necessary to
accommodate the new generator. In addition, SSLP
agrees to contribute up to Nineteen Thousand Dollars
($19,000) towards the cost of the generator. The
generator shall be purchased and installed by Owner
and shall be the sole property and responsibility of
Owner, however, SSLP shall have the right to connect
its facility to the generator for use as a power source in
the event of emergency or other disruption in electrical
services.
8. Compliance with Laws. Owner represents that the
Property (including the Site), and all improvements
located thereon, are and shall remain in substantial
compliance with building, life/safety, disability and
other laws, codes and regulations of applicable
governmental authorities. SSLP will substantially
comply with all applicable laws directly relating to
S SLP's operation of the PCS and the improvements
constructed by SSLP at the Site.
9. Interference. SSLP will resolve technical
interference problems with other equipment located at
the Site as of the Commencement Date or with any
equipment that SSLP attaches to the Site from time to
time. Owner will not permit the installation of any
future communications equipment (excluding standard
electronic devices normally used by Owner in
connection with its administrative functions at the
Property) which results in technical interference
problems with SSLP's then existing equipment. Prior
to installing or permitting any radio transmitter or other
communication equipment or antennas belonging to
another commercial entity on the Property (including,
without limitation, the Site), Owner shall advise SSLP
of the nature of the proposed facilities in sufficient
detail to permit SSLP to determine if said facilities
would create technical interference with S SLP's then-
existing equipment and shall not install or permit the
installation of said facilities if SSLP reasonably
determines that such interference would result. Any
future lease, license, or other permit to use the
Property granted by Owner shall expressly require (for
the benefit of SSLP) the user thereunder not to cause
interference with the operation of SSLP's PCS
equipment.
10. Utilities. SSLP has reviewed the utilities available
at the Site and has determined that they are adequate
for the uses contemplated by SSLP pursuant to this
Agreement. SSLP will pay for all utilities used by it at
the Site. Owner will cooperate with SSLP in S SLP's
efforts to obtain utilities from any location provided by
Owner or the servicing utility, including a submeter, if
PCS SITE AGREEMENT
Page 3 of 4 with Exhibits A - C
Site Name Tiburon Town Hall
Site I.D. No. FS-04-400
necessary.
11. Termination. SSLP may terminate this Agreement
at any time by notice to Owner without further liability
if SSLP does not obtain all permits, consents,
easements, non-disturbance agreements or other
approvals (collectively, "approval") reasonably
required by SSLP or required from any governmental
authority or any third party related to or reasonably
necessary to operate the PCS system, or if any such
approval is canceled, expires or is withdrawn or
terminated, or if Owner fails to have proper ownership
of the Site or authority to enter into this Agreement, or
if SSLP, for any other reason, in its sole reasonable
discretion, determines that it will be unable to use the
Site for its intended purpose. Upon termination, all
prepaid rent shall be retained by Owner.
12. Default. If either party is in default under this
Agreement for a period of (a) ten days following
receipt of notice from the non-defaulting party with
respect to a default which may be cured solely by the
payment of money, or (b) thirty days following receipt
of notice from the non-defaulting party with respect to
a default which may not be cured solely by the payment
of money, then, in either event, the non-defaulting
party may pursue any remedies available to it against
the defaulting party under applicable law, including, but
not limited to, the right to terminate this Agreement. If
the non-monetary default may not reasonably be cured
within a thirty day period, this Agreement may not be
terminated if the defaulting party commences action to
cure the default within such thirty day period and
proceeds with due diligence to fully cure the default.
13. Indemnity. SSLP shall indemnify, defend, and
hold Owner, its agents, employees, officers and
representatives harmless from and against any and all
claims, actions, damages, fines liabilities, costs and
expenses (including reasonable attorneys' fees) to the
extent arising from the negligent or intentionally
wrongful acts or omissions of SSLP, its agents,
employees, contractors and representatives, or to the
extent arising from claims of injury caused by emissions
emanating from the operation of SSLP's PCS facility on
the Property. This indemnity does not apply to any
such claims, actions, damages, fines liabilities, costs
and expenses arising from the sole negligence or
intentional misconduct of Owner, or its agents,
employees, representatives, or officers.
14. Hazardous Substances. Owner represents that it
has no knowledge, after reasonable inquiry, of any
substance, chemical or waste (collectively, "substance")
on or under the Site or Property that is identified as
hazardous, toxic or dangerous in any applicable federal,
state or local law or regulation. SSLP shall not
introduce or use any such substance on the Site in
violation of any applicable law. Owner shall indemnify
and hold SSLP harmless from and against all claims,
actions, damages, fines, liabilities, costs and expenses
(including attorneys' and expert fees) arising, directly
or indirectly, from the presence of any substance on,
under or around the Property or the Site that Owner
knew or should have known was present, unless SSLP
directly or indirectly caused said substance to be
brought onto the Property. SSLP shall indemnify and
hold Owner harmless from and against all claims,
actions, damages, fines, liabilities, costs and expenses
(including attorneys' and expert fees) arising, directly
or indirectly, from the presence of any substance on,
under or around the Property or the Site that SSLP
caused to be brought onto the Property or Site. These
indemnity obligations shall include damages, costs and
expenses incurred &-connection with any investigation,
cleanup, remediation, monitoring, removal or
restoration related to the presence of any substance.
This indemnity shall survive the expiration or
termination of this Agreement. For the purposes of this
Section, "Owner" shall include Owner, its agents,
employees, officers and representatives; and "SSLP"
shall include, SSLP, its agents, employees, officers and
representatives.
15. Miscellaneous. (a) This Agreement applies to and
binds the heirs, successors, executors, administrators
and assigns of the parties to this Agreement; (b) This
Agreement is governed by the laws of the State in
which the Site is located; (c) If requested by SSLP,
Owner agrees promptly to execute and deliver to SSLP
PCS SITE AGREEMENT
Page 4 of 4 with Exhibits A - C
Site Name Tiburon Town Hall
Site I.D. No. FS-04-400
a recordable Memorandum of this Agreement in the
form of Exhibit ; (d) This Agreement (including the
Exhibits) constitutes the entire agreement between the
parties and supersedes all prior written and verbal
agreements, representations, promises or
understandings between the parties (except for such
matters lawfully imposed by Owner in its governmental
capacity, including but not limited to SSLP's
conditional use permit approved by the Town of
Tiburon City Council resolution 97-10), and any
amendments to this Agreement must be in writing and
executed by both parties; (e) If any provision of this
Agreement is invalid or unenforceable with respect to
any party, the remainder of this Agreement or the
application of such provision to persons other than
those as to whom it is held invalid or unenforceable,
will not be affected and each provision of this
Agreement will be valid and enforceable to the fullest
extent permitted by law; and (f) The prevailing party in
any action or proceeding in court or mutually agreed
upon arbitration proceeding to enforce the terms of this
Agreement is entitled to receive its reasonable
attorneys fees and other reasonable enforcement costs
and expenses from the non-prevailing party.
16. Subordination/Nondisturbance. This Agreement
is subordinate to any lien, mortgage or deed of trust
now of record against the Site. However, promptly
after this Agreement is fully executed, Owner will
request the holder of any such mortgage or deed of
trust to execute a non-disturbance agreement, and
Owner will cooperate with SSLP toward such end to
the extent that such cooperation does not cause Owner
unreasonable additional financial liability or
administrative expense.
17. Insurance. SSLP will procure and maintain a
public liability policy, with limits of $1,000,000 for
bodily injury, $1,000,000 for property damage,
$2,000,000 aggregate. Said policy will name Owner as
an additional insured, and a certificate of insurance to
be furnished to Owner within 30 days of written
request. Such policy will provide that cancellation will
not occur without at least 15 days prior written notice
to Owner.
18. Bond. Prior to commencement of construction of
its improvements at the Property, SSLP will provide
Owner a surety bond ensuring SSLP's performance of
its duties and obligations under this Agreement. Said
bond shall have a face amount of $20,000.
The following Exhibits are attached to and made a part
of this Agreement: Exhibit A , B and C.
OWNER: The Town Ti
By: 0/1, 4
Its:
5.5./Tax No
Address:
Dated: Q~~GUIP,~` , 1997
Approved as to form:
Ann,Z Danfortfi, 'g'own Attorney
Dated: , 1997
Sprint Spectrum L.P., a Delaware limited partnership
By:
~t ~ C' ~jv1
Its: Director of Engineering and Operatiefns
Address: 4683 Chabot Drive, Suite 100
Pleasanton, CA 94588
Dated: 2 1997
EXHIBIT A
to
PCS SITE AGREEMENT
Description of Owner's Property
Site Name: Tiburon Town Hall
Site I.D. No. Fs-04400
Description of Owner's Property:
The real property situated in the Town of Tiburon, County of Marin, State of California commonly
described as the Tiburon Town Hall, and more particularly described as:
EXHIBIT "ONE"
PARCEL ONE
PARCEL A, as shown upon that certain Parcel map entitled, "Parcel Map of a portion of Section 6, T.1 S . ,
R. 5 W. M.D.B. & M. filed for record December 7, 1978 in Book 15 of Parcel Maps, at page 90, Marin
County )records.
EXCEPTING therefrom that portion conveyed to the Belvedere-Tiburon Library Agency by that certain deed
recorded March 12, 1996 as Serial No. 96-012169, Marin County Records.
ALSO EXCEPTING THEREFROM
THE title and exclusive right to all of the minerals and mineral ores of every kind and character now known
to exist or hereafter discovered upon, with or underlying said land or that may be produced therefrom
including, without limiting the generality . of the foregoing, all petroleum, oil, natural gas and other
hydrocarbon substances and products denved therefrom, together with the exclusive and perpetual right of
said Grantor, its' successors and assigns, of ingress and egress beneath the surface of said land to explore
for, extract, mine and remove the same, and to make uses of the said land beneath the surface as is necessary
or useful in connection therewith, which use may include lateral or slant drilling, boring, digging or sinking
of wells, shafts or tunnels, provided however, that said Grantor its' successors and assigns shall not use the
surface of said land in the exercise of any of said rights and shall not disturb the surface of said land or any
improvements thereon, or remove or repair the lateral or sub'acent supppport of said land or any improvements
thereon, as reserved in the Deed from Northwestern Pacific kilroad Ooom any, a corporation, recorded
January 31, 1955 in Book 917 of Official Records at Page 311 and December 13, 1956 in Book 1079 of
Official Records at Page 616, Marin County Records.
PARCEL TWO
AN EASEMENT for the purpose of ingress and egress over under and above a portion of land of the Town
of Tiburon, said portion of land being a onion of the lands conveyed by Edward G. Zelins and Barbara
Z. Abrams to the Town of Tiburon, a Municipal Corporation, by deed recorded March 19, 1986, as
described in the document Number 86 014119 and a portion of the lands conveyed by Edward G. Zelinsky
and Barbara Z. Abrams to the Town of Tiburon a Municipal Corporation, b deed recorded February 1,
1990, as described in Document Number 90 06159, Marin County Records, State of California, said land
described as follows:
BEGINNING at the most Northerly, corner of said lands of the Town of Tiburon, Document Number 86
014119, said corner also being a point on the Southerly right of way line of Mar West Street; thence along
the Northeasterly property line of said lands of the Town of Tiburon South 65 ° 47' 32" East, 148.00 feet to
the true point of begiiuung; thence from the true point of beguuu'nyouth 65 ° 47' 32" East, 42.23 feet to a
point common with said lands of the Town of Tiburon Document-Number 90 06759; thence leaving said
point along the Northeasterly property line of said lands of the Town of Tiburon, Document Number
90 06759 South 65 ° 47' 32 East, 69.51 feet to a point; thence leaving said Northeasterly property line Sou&
36° 25' 08" West, 183.07 feet to a point on the Southwesterly property line of the lands of the Town of
Tiburon, document Number 90 06759, said point also being on the Northeasterly right of way line of
Tiburon Boulevard; thence along said property and right of way line North 55 ° 55' 42" West 68.00 feet to a
point common with said lands of the 'Down of Tiburon, Document Number 86 014119; thence leaving said
point along said property line of the lands of the Town of Tiburon, Document Number 86 014119 and right
of way line North 55° 55' 42" West, 16.68 feet to a point; thence leaving said property and right of way line
North 36° 25' 08' East, 49.21 feet; North 24° 12' 28" East, 116.32 feet to the true point of beginning.
Owner Initials
SSLP Initials
EXHIBIT B-1
to
PCS SITE AGREJEMENT
Description of SSLP's Site
Site Name Tiburon Town Hall
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Page No.
IISLRDO J CM HALL A
311,)19-1 1. ll~~h 1 TI I OF i
I.D. No. FS-04400
Note: SSLP may replace this Description of SSLP's Site and Improvements with the plans submitted to the local jurisdiction for a building
permit (as approved by Owner) and/or as-built drawings depicting the Site and Improvements. Such replacement description shall be
deemed a part of this Agreement and shall be binding on Owner and SSLP.
Owner Initials wile
SSLP Initials
EXHIBIT B-,?-
to
PCS SITE AGREEMENT
Description of SSLP's Site
Site Name Tiburon Town Hall Site I.D. No. FS-04-400
PRDPOSED NEW P.S i / -METAL RAISED SEAM ROOF
WrENNAS - Z PER ASSEMBLY, PAINTED
SCCTR rOR 3 SECTDQS -4115 TS HIP BEAM
(b TOTAL) \ 2.2 STL. CwwNELS WELDED
DIM - 5t"X B"% 311 To HIP BEAM, 04•-0- D.C.
12
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a J'I i I AMTENPIA) 4-
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.i _ - 1 1- 1 1
1 1 1
I 1 1 1
1 1 1 1
1 1 1 1
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1 1
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1
1 ROOF DRAIN TYP W. WALL
-T -J ASSEMBLY
Em.
ALL TUBE STL. AND STL
CHANNELS TO BE PAINTED
TOWER PARTIAL SECTION
SCALE: 1/2':1'-0" Mw,EC 1 I
Note: SSLP may replace this Description of SSLP's Site and Improvements with the plans submitted to the local jurisdiction for a building
permit (as approved by Owner) and/or as-built drawings depicting the Site and Improvements. Such replacement description shall be
deemed a part of this Agreement and shall be binding on Owner and SSLP.
Owner Initials
Azle ,
SSLP Initials 454--
EXHIBIT C
to
PCS SITE AGREEMENT
Memorandum of Agreement
Site Name: Tiburon Town Hall Site I.D. No.fs-04-400
THIS MEMORANDUM OF AGREEMENT is made and entered into as of , 1997 by and between Town of
Tiburon ("Owner") and Sprint Spectrum L.P., a Delaware limited partnership ("SSLP").
WITNESSETH:
That Owner hereby leases to SSLP and SSLP hereby leases from Owner a portion of that certain real property (the "Property") in the State of
California, County of Marin, Town of Tiburon commonly known as Tiburon Town Hall, a legal description of which is shown in Exhibit A attached
hereto and incorporated herein by reference, under the terms and conditions of the unrecorded PCS Site Agreement by and between Owner and SSLP
dated , 1997 and incorporated herein by reference (the "Agreement') for an initial term of five (5) years, and four (4) subsequent
optional extension terms of five (5) years each, pursuant to the terms of the Agreement. The Agreement provides for grant of an easement for unrestricted
rights of access to the Property and to electrical and telephone facilities serving the Property.
IN WITNESS WHEREOF, the parties have executed the Memorandum as of the day and year first above written.
Sprint Spectrum L.P., a Delaware limited
partnership
By:
Kathryn Hanson
Title: Director of Engineering and Operations
Owner: Town of Tiburon
By:
Title:
ACKNOWLEDGMENT
STATE OF CALIFORNIA ) Air--
) ss.
COUNTY OF )
On this day of , 1997, before me,
a Notary Public in and for said State and County, personally appeared , 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 signature(s)
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
Notary Public in and for said
State and County
Owner Initials
SSLP Initials
Ale
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