Loading...
HomeMy WebLinkAboutAgenda Packet - Aptil 2, 2007 - CCCONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT K. PERSON, ASSISTANT CITY MANAGER VIA: FRANCIS M. DELACH, CITY MANAGER: DATE: APRIL 2, 2007 SUBJECT: APPROVAL OF SITE LICENSE AGREEMENT BETWEEN THE CITY OF AZUSA AND SPRINT PCS ASSETTS, LLC RECOMMENDATION It is recommended that City Council authorize the City Manager to enter into a site license agreement with Spring PCS Assetts, LLC for the construction and operation of a cellular communications tower adjacent to the West Wing of City Hall. BACKGROUND On February 6, 2006 City Council approved a site license agreement and a consent subordination, non --disturbance and attornment agreement between the City of Azusa and Sprint PCS Assetts, LLC (see attached report). Since that time, PCS has requested some minor technical modifications to the lease document in order to conform with their standard agreements with other cities. These changes have been reviewed/amended and approved by the City Attorney. Staff has attached a red -lined version of the proposed lease for City Council's ease of identifying the changes being made. It is not necessary for the City Council/Azusa Public Financing Authority to execute a new consent subordination, non -disturbance and attornment agreement as no changes to that document are being proposed. As presented in February, 2006 approval of the proposed lease will not become effective unless the following conditions are met: 1) the agreement has been approved and executed by the City Manager, 2) the agreement has been reviewed and consented to by the Azusa Public Financing Authority (action already completed), 3) a written opinion of a nationally -recognized mond counsel stating that this agreement shall not cause the interest component of the lease payments described 'n the 2003 COP Agreement to become subject to federal and State of California personal income taxes is obtained, and 4) the City receives written authorization for the execution of this agreement from the bond insurer, as that term is defined in the 2003 COP Agreement. FISCAL IMPACT In addition to the revenues described in the attached February 2006 agenda report, Spring PCS Assetts, LLC has agreed to pay the City $5,000 for the the staff costs incurred in the processing of this revised lease agreement. The total net revenue over the entire term of the lease is $536,005 in addition to the $5,000 one time processing fee. Prepared by. T. Garcia, Buyer CITY OF AZUSA COMMUNICATIONS SITE LICENSE AGREEMENT WITH SPRINT PCS ASSETS, L.L.C. 1. Parties and Date. This Communications Site Licens Agre meat ("License" or "Agreement") is made and entered into this & day of 2007 by and between the City of Azusa (hereinafter referred to as "City"), a California municipal corporation and general law city with its principal place of business at 213 E. Foothill Boulevard, Azusa, CA 91702 and Sprint PCS Assets, L.L.C, a Delaware limited liability company (hereinafter referred to as "Licensee"), with its principal place of business at, Mailstop KSOPHT0101-Z2020 6391 Sprint Parkway, Overland Park, Kansas -66251-2020. The City and Licensee are sometimes collectively referred to herein as the "Parties." 2. Recitals. 2.1 Description of Licensed Land. The City is the owner of a piece of land generally located at 213 E. Foothill Blvd., City of Azusa, County of Los Angeles ("City Property"). City would life to allow the Licensee to use and the Licensee would like to use approximately one hundred and fifty (150) square feet of the City Property and such other property as is necessary for access and utility easements, if any, all of which are more particularly described on Exhibit "A" attached hereto and incorporated herein by reference ("Licensed Land"). 2.2 Purpose of License. City desires to allow the Licensee to use the Licensed Land and Licensee desires to use the Licensed Land in exchange for due and adequate consideration, the receipt and sufficiency of which are acknowledged by the Parties and further described and set forth in this License. The purpose of the License is to allow Licensee to construct and operate a wireless telecommunications facility on the Licensed Land to provide better communication services to its customers. 3. Terms. 3.1 Licensed Land. City hereby grants Licensee a license in, on, across and over the Licensed Land, on the terms hereinafter set forth, for the purpose of constructing and operating the Licensee Facilities, as defined below, to provide better communication services to its customers. ORANGE'% MXM\22693.J 3.2 Effective Date and Term. 3.2.1 Effective Date. This Agreement is dated , 200 for reference purposes only. This Agreement will not become effective until the date ("Effective Date") on which all of the following are true: (i) This Agreement has been approved and executed by both Licensee and the City Council of the City of Azusa; (ii) This Agreement has been reviewed and consented to by the Azusa Public Finance Authority; and (iii) In accordance with that certain Lease Agreement Relating to the City of Azusa 2003 Lease Revenue Refunding Certificates of Participation ("2003 COP Agreement") dated as of December 1, 2003 by and between the City and the Azusa Public Financing Authority and the City of Azusa, the City furnishes the Azusa Public Finance Authority, the Trustee and Insurer, as those terms are defined in the 2003 COP Agreement, a written opinion of a nationally -recognized bond counsel stating that this Agreement shall not cause the interest component of the lease payments described in the 2003 COP Agreement to become subject to federal or State of California personal income taxes; and (iv) The City receives written authorization for the execution of this Agreement from the bond insurer, as that term is defined in the 2003 COP Agreement. City shall use its reasonable and best efforts to secure each of the conditions precedent listed in this subsection. 3.2.1 Term. The term of this License shall be for five (5) years, commencing on the effective date of this Agreement. This License may be terminated in accordance with the provisions of Section 3.1.0 herein. 3.3. Option to Renew. Licensee shall have the option to renew this License on the terms and conditions herein contained for three (3) additional five (5) year periods upon written notice to City of Licensee's intent to do so at least ninety (90) days prior to the expiration of the preceding terra. Such notice shall be deemed given upon the mailing of such notice to City. If Licensee exercises the option to renew the License, City and Licensee shall execute an amendment to this License at least thirty (30) days prior to its expiration. 3.4 Facilities; Utilities; Access. oxAr:csEvMXMv22693. 12 3.4.1 Subject to the provisions of this License, Licensee has the right to erect, maintain and operate on the Licensed Land those radio communications facilities, utility lines, transmission lines, electronic equipment, radio transmitting and receiving antennas, supporting equipment and structures thereto ("Licensee Facilities") depicted or listed in Exhibit "A". In connection therewith, Licensee has the right to do all work necessary to prepare, maintain and alter the Licensed Land for Licensee's business operations and to install transmission lines connecting the antennas to the transmitters and receivers. All of Licensee's construction and installation work shall be performed at Licensee's sole cost and expense, and in a good and workmanlike manner. Title to the Licensee Facilities shall be held by Licensee. All Licensee Facilities shall remain Licensee's personal property and are not fixtures. Licensee shall remove all Licensee Facilities, at its sole expense, and shall repair any damage to the City Property or Licensed Land caused by such removal in accordance with Sections 3.11 and 3.12 below. 3.4.2 Licensee shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company. Licensee shall draw electricity and other utilities from separate utility service than City's from any utility company that will provide service to the Licensed Land. City agrees to sign such documents or easements as may be required by said utility companies to provide such service to the Licensed Land, including the grant to Licensee or to the servicing utility company at no cost to the Licensee of an easement in, over across or through the Licensed Land as required by such location acceptable to City and the servicing utility company. 3.4.3 Licensee, Licensee's employees, agents, subcontractors, lenders and invitees shall have access to the Licensed Land without notice to City twenty-four (24) hours a day, seven (7) days a week, at no charge. Notwithstanding such access to the Licensed Land and except for access needed for emergency repairs to the Licensee Facilities, Licensee shall provide City with a minimum of 24 hour notice by telephone, fax or writing informing City of the need to access the access easement area shown on Exhibit "B." For emergency access to the access easement area shown on Exhibit "B" Licensee shall provide City with reasonable notice. City also grants to Licensee, and its agents, employees, contractors, guests and invitees, a non-exclusive right and easement for pedestrian and vehicular ingress and egress across the City Property. 3.4.4 City shall maintain all existing access roadways from the nearest public roadway to the Licensed Land in a manner sufficient to allow pedestrian and vehicular access at all times under normal weather conditions. City shall be responsible for maintaining and repairing such roadway, at its sole expense, except for any damage caused by Licensee's use of such roadways. Notwithstanding the maintenance of existing roadways, and as discussed in Section 3.9 below, Licensee shall be responsible for ORANGr�MxMn22693. 13 acquiring, constructing and maintaining, at is sole expense, any additional access roadways or other means of ingress and egress necessary for the Licensed Land, as specified by City in Exhibit "B" attached hereto and incorporated herein by reference. if the City should determine, in its reasonable discretion, that any roadways or other means of ingress and egress are needed and should be constructed by Licensee, it shall notify Licensee in writing at least one hundred and eighty (180) calendar days prior to their required installation. Licensee shall have the opportunity to terminate the License, pursuant to the terms of Section 3.8.1 below, rather than acquire and construct the roadways or other means of ingress and egress. 3.5 Use. Subject to the provisions of Section 3.21, the Licensed Land may be used for any activity directly connected with the provision of communication services and the operation of the Licensee Facilities, provided that Licensee shall not construct or operate any Licensee Facilities in addition to those depicted or listed in Exhibit "A" without City's consent. Licensee's use of the Licensed Land shall comply with all applicable laws, ordinances and regulations. Without limiting the nature of the foregoing, Licensee shall obtain and maintain for the duration of the term and any renewal term a business license as required by the Azusa Municipal Code and Licensee shall pay any and all tax(es) required by the Azusa Municipal Code for such business license. if technically feasible, City may license other communication users on its Licensed Land or the City Property, provided that such users do not interfere with Licensee's communications operations. Similarly, Licensee shall not interfere with the communications operations of any other persons or entities that may have a lease or other entitlement with City for the Licensed Land or City Property which pre -dates this License, as discussed in more detail in Section 3.10. 3.6.1 Consideration. As consideration for the issuance of this License, Licensee shall pay to the City the annual amount of Eighteen Thousand Dollars ($18,000.00), payable in monthly installments of Fifteen Hundred Dollars ($1,500.00) on the lst day of each month (License Payments). The License Payments shall increase by four percent (4%) each year, effective on the anniversary date of this License. All payments shall be made payable to: 213 E. Foothill Boulevard, Azusa, CA 91702. 3.6.2 Lease Processing Fee. Licensee agrees to reimburse City for the actual costs incurred by City to have the City Attorney. the City Council and other City Departments review this Agreement, up to a maximum of Five Thousand and no/100 ($5000.00). Payment will be made to City within 30 days following full execution of Agreement. ORANGEIMXM122693. 14 3.7 Late Payment Charges. Licensee hereby acknowledges that late payment by Licensee to City of License Payments and other sures due hereunder will cause City to incur costs not contemplated by this License, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, if any installment of consideration or any other sum due from Licensee shall not be received by City within twenty (20) days after such amount shall be due, Licensee shall pay to City a late charge equal to ten percent (10%) of such overdue amount, as well as interest on the outstanding amount which shall accrue at the rate of ten percent (10%) per annum. In no event shall the late charge or interest exceed the maximum allowable by law. The parties hereby agree that such late charge will automatically accrue by reason of any late payment by Licensee. Acceptance of such late charge by City shall in no event constitute a waiver of Licensee's default with respect to such overdue amount, nor shall it prevent City from exercising any of the other rights and remedies granted hereunder. 3.8 Termination. In the event the License is terminated by either Party between the anniversary dates, there shall be a pro rata refund of any consideration paid in advance for the remaining term. 3.8.1 Termination by City or Licensee. Except in the case of a Default by Licensee, this License may not be terminated by City during the Term. provided in Section 3.2.1.. Licensee may terminate this Agreement at any time following the first year of the Term upon sixty (60) days prior written notice and payment to City of an additional sum of money equal to eighteen (18) months of current monthly rent as consideration. Notwithstanding the foregoing, no termination fee shall be due if Licensee terminates this License at any time due to. (i) a default of this License on the part of City or (ii) if Hazardous Substances are discovered on the Licensed Land which Hazardous Substances were not placed on the Licensed Land by Licensee. Notice is to be deemed given upon the mailing thereof, postage prepaid, to the recipient at is address set forth below. 3.8.2 Termination by License. This License may also be terminated upon sixty (60) days prior written notice during the first year of this License if Licensee is unable to occupy or utilize the Licensed Land due to ruling or directive of the FCC or other governmental agency, which cannot be reasonably corrected by Licensee, including but not limited to, a take back of channels or roadways or change in frequencies, or if Licensee determines that the Licensed Land is not appropriate for its operations for economic or technological reasons, including signal strength. or interference. In the event of a termination pursuant to this provision, Licensee shall pay to City an additional sum of money equal to one (1) year of consideration. ORANGF MXM\22693. 15 3.8.3 Termination by City. Violation of any term, covenant, condition or provision contained herein shall be cause for immediate termination of the License by City, unless corrected within thirty (30) days after City's written request to do so. If such violation cannot reasonably be corrected within such thirty (30) day period, the City shall not have the right to terminate the License if the Licensee commences correction of the violation within such thirty (30) day period and thereafter diligently pursues such correction to completion. Notwithstanding the foregoing, any instance of late payment is cause for immediate termination, as described in Section 3.8, at the sole discretion of City, unless payment is made along with all applicable penalties and interest within ten (10) days after the City provides written notice to Licensee of the late payment. Upon the third instance of late payment within any twenty four (24) month period (including any extension or renewal terms), Licensee shall not be entitled to the 10 -day cure period, and the City may immediately terminate this License by providing written notice of termination to Licensee. 3.9 Improvements. No improvements, including the Licensee Facilities, shall be constructed and/or maintained on the Licensed Land without City's prior written approval of plans and specifications, including the aesthetic and visual nature of the Licensee Facilities, which approval. shall not be unreasonably withheld. The aesthetic and visual nature of the Licensee Facilities, including color and composition, shall compliment and blend into the City Property and surrounding community to the extent reasonably feasible_ Licensee shall not change the existing grade or otherwise modify the topography of the Licensed Land or City Property affected by this License without prior written consent of City. Subject to approval by City, Licensee may traverse City's Property outside the Licensed Land in order to connect to public utilities. To serve City's Facilities and to remedy obstructions to access created by this License, Licensee may be required to construct a new driveway apron, paved driveway or other means of ingress or egress outside of the Licensed Land, and to perform all other worm in connection therewith solely at Licensee's expense, which work the City shall specify in Exhibit "B" attached hereto. Such means of ingress or egress may or may not be on the Licensed Land owned by City. In the event they are not on City's Licensed Land, Licensee must obtain its own right-of-way. Licensee must comply with City's guidelines as to construct in the vicinity of City's facilities. 3.1.0 Interference. 3.10.1 The Licensed Facilities shall not cause measurable interference to the communications configurations, equipment and frequencies which exist on the City Property or Licensed Land as of the Commencement Date (the "Pre-existing ORAN6E\MxM122693. 16 Equipment"), and the Licensee Facilities shall comply with all non-interference rules of the Federal Communications Commission. Licensee's use of the Licensed Land shall also not unreasonably interfere with City's primary use of the City Property and Licensed Land for use as a municipal civic center, city hall and police station and any communications systems as may be installed by City at the City Property or Licensed Land in connection. therewith. City shall not permit any other tenant or occupant of the City Property, to engage in any activities or operations which cause measurable interference with Licensee's equipment. Any such interference with Licensee's equipment shall be deemed a material breach by City, and the Parties shall use commercially reasonable efforts, consistent with public safety and the requirements of the City, to attempt to resolve such interference. In the event any such interference does not cease promptly, the Parties acknowledge that continuing interference will cause irreparable injury to Licensee, and therefore, Licensee shall have the right to (i) bring action against City or such third party to enjoin such interference, or (ii) terminate this Agreement immediately upon notice to City, in addition to any other rights or remedies at law or in equity. Notwithstanding the foregoing, Pre-existing Equipment operating in the same manner as on the Commencement Date shall not be deemed interference. 3.10.2 This License is subject and subordinate to the prior and future rights of City to use its Licensed Land in the exercise of its powers and in the performance of its duties. There is reserved to City the right to construct or reconstruct facilities and appurtenances in, upon, over, under, across and along the Licensed Land and City Property, and in connection therewith, the right to grant or convey to others rights and interest to the Licensed Land and City Property; provided such rights and interests do not cause interference with Licensee's operations. 3.11 Vacating the Property. At the expiration of the term or at any sooner termination of this License, Licensee shall quit and surrender possession of the Licensed Land and City property, and their appurtenances, to City in as good order and condition as they were delivered to Licensee, reasonable wear and tear and damage by the elements excepted. Within thirty (30) days of the expiration or termination of this License, Licensee shall remove all Licensee Facilities from the Licensed Land and City Property. Licensee agrees to pay any costs incurred by City if Licensee fails to comply with this provision, including attorneys' fees and costs expended on any action by City to compel removal by Licensee or collect the liquidated damages described in this section. Licensee agrees that the inconvenience and other damage to City in the event of Licensee's failure to timely remove Licensee Facilities is impossible to measure precisely, but agrees that one hundred dollars ($100.00) is a reasonable estimate of City's damages. To this end, if Licensee shall not restore the City Property and Licensed Land as required, Licensee shall pay one hundred dollars ($100.00) as ORANC,EMMMM093. 17 liquidated damages .for each day following expiration or termination of this License on which Licensee Facilities are present on City Property. 3.12 Maintenance. Licensee shall, at its sole cost and expense, keep the Licensed Land free of noxious weeds and trash, and in good and proper condition in compliance with all applicable laws and regulations concerning the use of the Licensed Land. Licensee shall also not cause trash or other debris to be placed on the City Property. All improvements shall be maintained in good and workable order and good appearance, in accordance with City's written direction which may be provided from time to time, including but not limited to, painting and screening. In addition, Licensee shall make any repairs to the Licensed Land or City Property caused by or incident to Licensee's use of the Licensed Land or implementation of this License. 3.13 Hazardous Substances. 3.13.1 For purposes of this License, the term "Hazardous Substances" means: (a) any substance, products, waste, or other material of any nature whatsoever which is or becornes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 United States Code Section 9601 et seq.; the Resources Conservation and Recovery Act, 42 United States Code Section 6901 et seq.; the Hazardous Materials Transportation Conservation and Recovery Act, 42 United States Code Section 1501 et seq.; the Clean Water Act, 33 United States Code Section 1251 et seq.; the Toxic Substances Control Act, 15 United States Code Section 2601 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the Hazardous Substance Account Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1 et seq.; California Health and Safety Code Section 25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or the California Porter -Cologne Water Quality Control Act, Water Code Section 13000 et seq., all as amended (the above cited California state statutes are hereinafter collectively referred to as "the State Toxic Substances Law"); or any other federal, state, or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance, now or at any time hereinafter in effect; (b) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court; (c) ORANGE1MXM122693. IS petroleum or crude oil, other than petroleum and petroleum products which are contained within regularly operated motor vehicles; and (d) asbestos. 3.13.2 City warrants and represents that, to its knowledge as of the date hereof, there are no Hazardous Substances in or about the Licensed Land and the City Property, the improvements thereon do not violate any applicable Federal, State, or local statutes, ordinances, regulations, rules or other requirements, and there is not presently pending any proceeding before any Federal, State or local tribunal or agency, the. outcome of which would diminish or preclude Licensee's use of the Licensed Land as permitted under the terms of this License. Except as so provided, City makes no warranty or representation whatsoever concerning the Licensed Land or City Property, including without limitation, the condition, fitness or utility for any purpose thereof, of any improvements thereto with applicable laws, ordinances or governmental regulations. Licensee's right to use the Licensed Land and City Property is strictly on an "as is" basis with all faults. City hereby disclaims all other warranties whatsoever, express or implied, the condition of the soil (or water), geology, and any warranty of merchantability or habitability or fitness for a particular purpose. 3.13.3 Except as otherwise specifically permitted under the terms of this License, Licensee shall not use, create, generate, store, deposit, dispose of or allow any Hazardous Substances on, under, about or within the City Property or Licensed Land in violation of any federal, state, or local law, rule, regulation, order, decree or other requirement listed in sub -section 3.13.1. Storage batteries for emergency power, fuel for temporary generators during power outages, and ordinary paints, solvents and similar substances commonly used in small quantities and necessary for maintenance of the Licensee's Facilities are excepted from the preceding prohibition of use by Licensee of Hazardous Substances on the Licensed Land, so long as Licensee complies with all applicable federal, state and local laws rules and regulations governing the use of such items. 3.13.4 No permanent underground or above ground storage tanks shall be installed on the Licensed Land or City Property. 3.13.5 City or its officers, employees, contractors, or agents shall have the right to go upon and inspect the Licensed Land and the Operations conducted thereon to assure compliance with the requirements herein stated. Licensee may have a representative present during any such inspection. This inspection may include taking samples for chemical analysis of substances and materials present and/or testing soils on the Licensed Land and taking photographs. During the course of any inspections, City or its officers, employees, contractors, or agents shall use their best efforts not to disturb the Operations or damage the Licensed Facilities. OltANCUEi.MXM122613. 1.9 3.13.6 Licensee shall, within a reasonable time, either prior to the release by Licensee, or following the discovery by Licensee, of the presence of, or believed presence of, a Hazardous Substance as defined herein, give written notice to City in the event that Licensee knows or has reasonable cause to believe that any release of Hazardous Substance has come or will come to be located on, under, about or within the Licensed Land or City Property. the failure to disclose in a timely manner the release of a Hazardous Substance, including but not limited to, an amount which is required to be reported to a state or local agency pursuant to law (e.g., California's Hazardous Materials Storage and Emergency Response Act, Health and. Safety Code Section 25550 et seq.) shall be grounds .for termination of this License by City in addition to actual damages and other remedies provided by law. Licensee shall immediately clean up and completely remove all Hazardous Substances placed by Licensee on, under, about or within the Licensed Land or City Property, in a manner that is in all respects safe and in accordance with all applicable laws, rules, and regulations. 3.1.3.7 In the event Hazardous Substances are discovered, Licensee shall disclose to City the specific information regarding Licensee's discovery of any Hazardous Substances placed on, under, about or within the Licensed Land or City Property by Licensee, and provide written documentation of its safe and legal disposal. 3.13.5 Breach of any of these covenants, terms, and conditions shall give City the authority to either immediately terminate this License or to shut down Licensee's operations thereon, at the sole discretion of City. In either case, Licensee will continue to be liable under this License to remove and mitigate all Hazardous Substances placed by Licensee on, under, about or within the Licensed Land or City Property. Licensee shall be responsible for, and bear the entire cost of removal and disposal of, all Hazardous Substances introduced to the Licensed Land and City Property by Licensee during Licensee's period of use and possession of the Licensed Land or City Property. Upon termination of this License, Licensee shall, in accordance with all laws, remove from the Licensed Land or City Property any equipment or improvements placed on the Licensed Land or City Property by Licensee that may be contaminated by Hazardous Substances. 3.13.9 Licensee shall defend, indemnify and hold City and its officials, officers, employees, contractors and agents free and harmless from any and all claims, liability, injury, damage, costs, or expenses (including, without limitation, the cost of attorney's fees) arising as a result of the presence of use of any Hazardous Substances placed or caused to be placed by the Licensee or its partners, affiliates, agents, officials, officers, contractors or employees on the City Property or Licensed Land. The foregoing O R A N GEINIXM12 2 693. 110 indemnity is intended to operate as an agreement pursuant to, among other requirements, Section 107, subdivision (e) of CERCLA, 42 United States Code Section 9607, subdivision (e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless and indemnify City from any liability created by the Licensee pursuant to such sections. 3.14 Access. If required by City in Exhibit "I3" attached hereto, Licensee shall provide and maintain uninterrupted vehicular access in and across the Licensed Land for City and its employees, agents and contractors. if requested by City, Licensee shall provide a means for City to place its locks on gates. 3.15 Entry by Owner. Licensee shall permit City to enter upon the Licensed Land at any reasonable time for the inspection thereof, or at any time in connection with any work which may be required thereon. Licensee may have a representative present during any such inspection. During the course of any inspections, City or its officers, employees, contractors, or agents shall use their best efforts not to disturb the Operations or damage the Licensed Facilities. 3.1.6 Previous Licenses. In the event there is an existing license between Licensee and City (or its predecessor -in -interest) covering the Licensed Land, it is agreed and understood that this License shall cancel, supersede and terminate said prior license as of the effective date of this License. 3.1.7 Subordinate Rights. This License is subject and subordinate to the prior and future rights and obligations of City, its successors and assigns, to use the City Property in the exercise of its powers and in the performance of its duties, provided that the foregoing not unreasonably interferes with Licensee's use of the Licensed Land provided in this License. Accordingly, there is reserved and retained unto City; its successors, assigns, grantees, and permittees, the right to construct and reconstruct facilities and appurtenances in, upon, over, under, across, and along City Property, and in connection therewith, the right to grant and convey to others, rights and interests to City Property, provided that the foregoing not unreasonably interfere with Licensee's use of Licensed Land as provided in this License. This License is subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens, claims, and other matters of title ("Title Exceptions") which may affect the Licensed Land now or hereafter. 3.18 Assignment or Subletting. Licensee shall not assign this License without the prior express written consent of the City; provided, however, Licensee may assign this QRANGE\MXM122693. 11. 1 License, without increasing the number or substantially changing the type of facilities on the Licensed Land, to any of its subsidiaries, affiliates or successor legal entities, or to any entity acquiring substantially all of the assets of Licensee. Licensee shall not sublicense all or any portion of the City Property or Licensed Land without the express written consent of the City, which consent shall not be unreasonably withheld. Any unauthorized assignment or sublicense shall be void and shall immediately terminate this License. 3.19 Taxes. The possessory property interest created by this License may be subject to property taxation, and Licensee may be subject to the payment of property taxes levied on such interest by the appropriate taxing authority. Licensee is required to pay any such tax directly to the appropriate taxing authority. In addition, if personal property taxes are assessed, Licensee shall pay any portion of such taxes directly attributable to the Licensee Facilities. City shall pay all real property taxes, assessments and deferred taxes on the Licensed Land. F 3.20 Mechanic's Liens. Licensee shall keep the Licensed Land and City Property free from any liens arising out of any work performed, material furnished, or obligations incurred by Licensee, or any tenant or subtenant thereof.. Licensee shall not be considered in violation of this provision if it provides a bond in lieu of the lien which is in conformance with applicable law and which is in an amount and form acceptable to the City. 3.27. Waiver. The waiver by City or Licensee of any breach of any term, covenant, condition or provision contained herein ("Terms"), shall not be deemed to be a waiver of such Terms for any subsequent breach of the same or any other Terms contained herein. The subsequent acceptance of consideration by City shall not be deemed to be a waiver of any preceding breach by Licensee of any Terms of this License, other than the failure of Licensee to pay the particular consideration so accepted, regardless of City's knowledge of such preceding breach at the time of acceptance of such consideration. 3.22 Attorneys' Fees. The prevailing party in any action brought by either party hereto, based on any claim arising under this License, shall be entitled to reasonable attorneys' and/or consultants' fees. 3.23 Insurance. 3.23.1 T es• Amounts. License shall obtain, and shall require any subcontractor to obtain, insurance in the amounts described below unless specifically altered or waived by City ("Required Insurance"). If any of the Required Insurance contains a oRANGr1N XW22s93. 112 general aggregate limit, such insurance shall apply separately to this License or be no less than two times the specified occurrence limit. (i) General Liability Insurance. Licensee shall maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than Two Million Dollars ($2,000,000) per occurrence. (ii) "All Risk" Property Insurance. Licensee shall maintain a policy of property insurance for perils usual to a standard "all risk" insurance policy on all its improvements or alterations in, on, or about the Licensed Land, with limits equal to the value of all such improvements or alterations. 3.23.2 General Provisions. The general liability insurance policy shall name City, its elected officials, officers, employees, agents, and volunteers as additional insureds. The Required .Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, agents, and volunteers, or if in excess stand in an unbroken chain of coverage in excess of Licensee's scheduled underlying coverage. The Required Insurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers. 3.23.3 Certificatesr Insurer Rating; Cancellation Notice. Prior to the Commencement Date, Licensee shall furnish to City properly executed certificates of insurance which evidence all Required Insurance. Licensee shall maintain the Required Insurance at all times while this License is in effect, and shall replace any certificate, policy, or endorsement which will expire prior to that date. Licensee shall provide thirty (30) day written notice to City in the event the Required Insurance carrier is suspends, voids, reduces, cancels, or allows Required Insurance coverage to expire. Prior to such expiration or termination, Licensee shall procure replacement insurance in compliance with this License Agreement. Unless approved in writing by City, Licensee shall place the Required Insurance with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least A -:VIII. 3.23.4 Waiver of Subro ation. City and Licensee release each other and their respective officials, directors, employees, representatives, and agents from any claims for damage or harm to any person, the Licensed Land, or Licensee's Facilities caused by, or which result from, risks insured under any insurance policy carried by the Parties at the time of such damage or harm. City and Licensee shall cause each insurance policy obtained by them to provide the insurance company waives a.11 right of recovery by way ORANGEVMXM122693. 113 of subrogation against the other in connection with any damage or harm covered by such policy. 3.24. Indemnity. Subject to Section 3.23.4 of this License, Licensee agrees to indemnify, defend and hold City harmless from and against all damages, claims of liabilities and expenses including reasonable attorneys' fees, arising out of Licensee's use and occupancy of the Licensed Land. Licensee's indemnity obligation does not apply to any claims or damages arising out of or in connection with the acts or omissions of City, its employees, agents, consultants, representatives or contractors. 3.25 Title and Quiet Possession. City represents and warrants to Licensee (a) that it is the owner of the City Property and Licensed Land and is the lessor of the City Property and Licensed Land pursuant to a Site and Facilities Lease Agreement ("SPLA") dated as of December 1, 2003 by and between the City and the Azusa Public Financing Authority and is the lessee of the City Property and Licensed Land pursuant to the 2003 CCP Agreement ("Sublease") dated as of December 1, 2003 by and between the City and the Azusa Public Financing Authority and that the SFLA and Sublease are in full force and effect and City is lawfully in possession of the City Property and Licensed Land thereunder, (b) that City has the right and authority to enter into this License and to grant Licensee the right to use the City Property and Licensed Land as contemplated by this License and that City has obtained and will maintain all approvals and consents that may be required under the SFLA or Sublease in order for City to grant Licensee the rights under the License and (c) that, subject to the terms and conditions of this License, Licensee shall be entitled to access, use and the quite possession of the City Property and Licensed Land pursuant to the terms and conditions of this Licensee free from interference, obstruction or hindrance by the Authority or any party gaining rights by, through or under the SPLA or Sublease and (d) City will enter into a consent and non -disturbance agreement with Licensee and Authority and will use its best efforts to obtain a consent non -disturbance agreement with the Authority on terms and conditions acceptable to Licensee. 3.26 Amendments. The provisions of this License may be amended by mutual written consent of the Parties. 3.27 No Relocation Assistance. Licensee acknowledges that Licensee is not entitled to relocation assistance or any other benefits under the Uniform Relocation Assistance Act or any other applicable provision of law upon termination to this License. 3.28 Time. Time is of the essence of this License. ORANGE1MXM122693. 114 3.29 Notices. All notices permitted or required under this License shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Licensee: Sprint PCS Assets, L.L.C. Mailstop KSOPHT0101-Z2650 6391 Sprint Parkway Overland Park Kansas 66251-2650 With a copy to: Sprint Law Department MaiIstop KSOPHT0101-Z2020 6391 Sprint Parkway Overland Park Kansas 66251-2650 City; City of Azusa 213 E. Foothill Blvd. Azusa, CA 91702 Attn: City Manager Such notice shall be deemed made when personally delivered or forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.29 Entire Agreement. This License constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments to this License must be in writing and executed by both parties. 3.30 Invalidity. If any provision of this License is invalid or unenforceable with respect to any party, the remainder of this License 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 License shall be valid and enforceable to the fullest extent permitted by law. ORANCrE\MJXM122693. 115 3.31 Successors and Assigns. This License shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. 3.32 Governing Law. This License shall be governed by the laws of the State of California. 3.33 Execution of License. This License may be executed in duplicate counterparts, each of which shall be deemed an original. 3.34 Survival. All obligations of Licensee hereunder not fully performed as of the completion or termination of this License shall survive such completion or termination, including without limitation all payment obligations and all obligations concerning the condition of the Licensed Land and City Property. 3.35 Nondiscrimination. Licensee certifies and agrees that all persons employed by it, its affiliates, subsidiaries, or holding companies and any of its contractors retained with respect to this License are and shall be treated equally without regard to or because of race, religion, ancestry, national original or sex, and in compliance with all federal and state laws prohibiting discrimination in employment. CITY OF AZUSA, a California municipal corporation By: Fran Delach City Manager Attest: Vera Mendoza, City Clerk 'J ORAVGh'111 XM\22693. 116 Approved as to Form: Best Best & Krieger LLP City ,Attorney LICENSEE Sprint PCS Assets, L.L.C. A Delaware limited liability company By: _ w Name: Title:,,, Date: `J d Sprint Contracts & Performance Hotline: 800-357-7541 ORANGE\MX \2261)3. 11.7 EXHIBIT A TO COMMUNICATIONS SITE LICENSE AGREEMENT LEGAL DESCRIPTION OF PROPERTY PARCEL I: LOT 23 IN BLOCK 18 OF AZUSA, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 93 THROUGH 96 INCLUSIVE OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 2: LOT 24 IN BLOCK 18 OF AZUSA, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 93 THROUGH 96 INCLUSIVE OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 3: LOT 15 THROUGH 20 INCLUSIVE AND LOTS 46 THROUGH 48 INCLUSIVE IN BLOCK 30 OF AZUSA, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 93 THROUGH 96 INCLUSIVE OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Page I of 2 EXHIBIT A TO COMMUNICATIONS SITE LICENSE AGREEMENT Exhibit (Rage:2 of 2) Site flan of Licensee Facilities ri °AZLVA POWER MANHOLE Mep Np(1ei 54'Dld. zz 23B' R 3 E�(IST�OAk 'y OPRLEASEAftrA: a PROPOSEDSMNTaw POLE$1554MUM ACCESS EA5FMENT Ld\d PROA(35Fq.5R(i[N7 NOFkEXClU9NE PAIN© _ rr ".:✓ ¢ i STALL FQR:5E4MCE VEitICEE [ + y 0 -------------- _—--- tvM mLfTY$A$9mmr E.1 oug-r. mywo wErER."..—/ Qewnse aw�w. �a P& FQ<D7-r IL I- BLLVED. PROPOSED SITE L0QA nQN LM5XCWI EXHIBIT B COMMUNICATIONS AND SITE LICENSE AGREEMENT City has no requirements for Licensee that pertain to this Exhibit B as referenced in Sections 3.4.4, 3.9, and 3.14. DINT CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL HONORABLE CHAIRPERSON AND BOARD OF THE AZUSA PUBLIC FINANCING AUTHORITY FROM: ROBERT K. PERSON, ASSISTANT CITY MANAGER VIA: F.M. DELACH, CITY MANAGER/EXECUTIVE DIRECTOR DATE: FEBRUARY 6, 2006 SUBJECT: APPROVAL OF SITE LICENSE AGREEMENT AND CONSENT, SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT BETWEEN THE CITY OF AZUSA AND SPRINT PCS ASSETS, LLC RECOMMENDATION It is recommended that the City Council and the Azusa Public Financing Authority authorize the City Manager/Executive Director, respectively, to enter into a site license agreement and a consent, subordination, non -disturbance and attornment agreement with Sprint PCS Assetts, LLC for the construction and operation of a cellular communications tower adjacent to the West Wing of City Hall. BACKGROUND Sprint PCS Assetts, LLC is requesting the approval of a site license agreement and the City Attorney is requiring approval of a consent, subordination, non -disturbance and attornement agreement between the City. The proposed cellular communications tower will be installed on an approximately 150 sq. ft. piece of city property adjacent to the western end of the West Wing at City Hall. Approval of the referenced documents will not become effective unless the following conditions are met: 1) the agreement has been approved and executed by the City Council, 2) the agreement has been reviewed and consented to by the Azusa Public Financing Authority, 3) a written opinion of a nationally -recognized bond counsel stating that this agreement shall not cause the interest component of the lease payments described in the 2003 COP Agreement to become subject to federal and State of California personal income taxes is obtained, and 4) the City receives written authorization for the execution of this agreement from the mond insurer, as that term is defined in the 2003 COP Agreement. The term of the agreement shall be for five years with options to renew for three additional five year periods. The cellular communications tower will be a 50 foot tower in the form of a monopine with bark cladding on the trunk in order to blend in with the existing landscaping. This item received Planning Commission approval on September 28, 2005. FISCAL IMPACT Negotiations with SprintPCS Assetts, LLC began at $12,000 per year for the entire term of the agreement and staff successfully negotiated the increase to $18,000 for the initial year with a 4% increase escalator for each successive year. Although cellular communications site lease rates were higher when cell sites were first rolled out to establish each telecommunications' firms networks, this new generation of in -fill sites generally command rates from $1,000 to $1,500 per month in today's market. The total net revenue over the entire term of the lease is $536,005. The average annual lease payment is $26,800 per year or $2,233 per month. This revenue will be a new gain for the City's General Fund. In addition to the lease revenue, Sprint PCS Assetts, LLC has agreed to demolish the existing communications tower at the same location at their expense. The tower has not served any purpose and is a eye -sore in the Civic Center. Attachments: Site Elevation Site -License Agreement Consent, Subordination, Non-Distrubance and Attornment Agreement EAZUSA CONSENT CALENDAR TO: THE HONORABLE CHAIRPERSON AND MEMBERS OF THE REDEVELOPMENT AGENCY BOARD FROM: ROBERT K. PERSON, DEPUTY EXECUTIVE DIRECTOR VIA: F. M. DELACH, EXECUTIVE DIRECTOR DATE: APRIL 2, 2007 SUBJECT: AUTHORIZATION TO ENTER INTO A PROPERTY LEASE AGREEMENT WITH AMERICAN PROMOTIONAL EVENTS, INC. FOR THE LEASE OF PROPERTY LOCATED AT 150 WEST NINTH STREET RECOMMENDATION: It is recommended that the Azusa Redevelopment Agency Board authorize the Executive Director to enter into a property lease agreement with American Promotional Events, Inc., for the lease of property located at 150 West Ninth Street. BACKGROUND: For many years, the owner of the Ranch Market site has leased, on a temporary basis, a portion of its parking lot to American Promotional Events for the purpose of providing space to non-profit Azusa groups selling safe and sane fireworks for fundraising purposes. Since the Agency has acquired the site for future redevelopment, American Promotional Events, Inc., has requested that the Agency lease the property for the same purposes for the period June 28, 2007 to July 4, 2007. Lessee must agree to all conditions imposed on other fireworks vendors doing business in the City as approved by the City Council. Lessee agrees to obtain all required insurance and to indemnify the Agency and hold harmless and defend against any loss, claims or costs arising from the use of the premises for the sale of fireworks by Lessee and the non-profit organization. FISCAL IMPACT: Lessee agrees to pay the Agency the amount of$3,300 (Three Thousand Three Hundred Dollars and Zero Cents) for the lease period. This figure is equal to the prior rental terms with the Ranch Market owner. Funds will be deposited into the Redevelopment Agency's account. N.,...,_ r ri m AZUSA CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT K. PERSON, ASSISTANT CITY MANAGER VIA: FRANCIS M. DELACH, CITY MANAGER DATE: APRIL 2, 2007 SUBJECT: APPROVAL OF SITE LICENSE AGREEMENT BETWEEN THE CITY OF AZUSA AND SPRINT PCS ASSETTS, LLC RECOMMENDATION It is recommended that City Council authorize the City Manager to enter into a site license agreement with Spring PCS Assetts, LLC for the construction and operation of a cellular communications tower adjacent to the West Wing of City Hall. BACKGROUND On February 6, 2006 City Council approved a site license agreement and a consent subordination, non-disturbance and attornment agreement between the City of Azusa and Sprint PCS Assetts, LLC (see attached report). Since that time, PCS has requested some minor technical modifications to the lease document in order to conform with their standard agreements with other cities. These changes have been reviewed/amended and approved by the City Attorney. Staff has attached a red-lined version of the proposed lease for City Council's ease of identifying the changes being made. It is not necessary for the City Council/Azusa Public Financing Authority to execute a new consent subordination, non-disturbance and attornment agreement as no changes to that document are being proposed. As presented in February, 2006 approval of the proposed lease will not become effective unless the following conditions are met: 1) the agreement has been approved and executed by the City Manager, 2) the agreement has been reviewed and consented to by the Azusa Public Financing Authority (action already completed), 3) a written opinion of a nationally-recognized bond counsel stating that this agreement shall not cause the interest component of the lease payments described in the 2003 COP Agreement to become subject to federal and State of California personal income taxes is obtained, and 4) the City receives written authorization for the execution of this agreement from the bond insurer, as that term is defined in the 2003 COP Agreement. FISCAL IMPACT In addition to the revenues described in the attached February 2006 agenda report, Spring PCS Assetts, LLC has agreed to pay the City $5,000 for the the staff costs incurred in the processing of this revised lease agreement. The total net revenue over the entire term of the lease is $536,005 in addition to the $5,000 one time processing fee. Prepared by:T.Garcia,Buyer 0 F 4 It FOR�� AZI.iSA The Canyon C Francis M. E 213 E. Footl fdelach@ci._____ March 7, 2007 Mr. Dennis Willut 758 E. Meda Glendora, CA 91741 Dear Mr. Willut: As you may recall after you appealed to the City Council to reconsider your request to have penalty fees waived at the meeting of February 5, 2007, the City Council directed me to report back on the matter at the next meeting of February 20, 2007. Attached is a copy of the report. The City Council received and accepted the report as submitted with a unanimous vote. Therefore, the penalties will not be waived. Arrangements should be made to make payment of the penalty fees as soon as possible. Sincerely, /Irk\ Francis M. Delach City Manager6(.11 enclosure I P cc: City Council /� City Attorney _/ Assistant City Manager Community and Economic Development Director Parks and Recreation Services Director cc/enc: Mr. Ronald Willut