Loading...
FD T-Mobile License Agreement; Amendment 2SECOND AMENDMENT TO LICENSE This SECOND AMENDMENT TO LICENSE (this "Second Amendment"), effective upon the last date signed below (the "Effective Date"), amends that certain License dated November 10, 1999 ("Original License"), as amended by that certain Amendment to Telecommunications License Agreement dated June 1, 2011 (the "First Amendment") (collectively, the "License") between T -Mobile West LLC, a Delaware limited liability company as successor to T -Mobile West Corporation, a Delaware corporation, which in turn is the successor -in -interest to Pacific Bell Wireless, LLC, a Nevada limited liability company ("Licensee") and the City of San Rafael, a municipal corporation ("City"). This Second Amendment may refer to City and Licensee individually as a "Party" or collectively as the "Parties." BACKGROUND WHEREAS, City owns that certain real property commonly known as 210 Third Street, San Rafael, California (AP No. 014-101-07) (the "Property") of which the Premises held by Licensee is a part thereof, and WHEREAS, City intends to rebuild the City's fire station at the Property requiring the termination of the License effective as of December 1, 2016 at 11:59 p.m. Pacific Time; and WHEREAS, City asserts that it effectively terminated the License effective July 13, 2016 by a letter to Licensee dated January 5, 2016, which the Licensee disputes; and WHEREAS, City and Licensee desire to finally resolve all disputes and disagreements between them in connection with the Licensee's continuing temporary use of the Premises and the City's or Licensee's right of termination of the License; and WHEREAS, City and Licensee desire to amend the License as provided below. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Licensee agree as follows: AGREEMENT 1. Permission to Temporarily Occupy Property. City grants Licensee the privilege to continue to use the Property for the approved Telecommunication Facilities on a temporary basis through Thursday, December 1, 2016 at 11:59 p.m. Pacific Time, at which time the License shall terminate. 2. License Fee Continues. The License Fee shall continue in effect during the term of the License as amended by this Second Amendment and shall automatically escalate as provided in the License Agreement. 3. One -Time Administrative Fee Payment. Within thirty (30) calendar days after the Effective Date of this Second Amendment, Licensee shall pay City the settled sum of Five Thousand and No,100 dollars ($5,000.00) as an administrative fee ("Administrative Fee") to Page l of 6 G --7 - 4 offset the City's costs to grant this Second Amendment. The Administrative Fee is not considered part of or offset to the Licensee Fee or any other obligation owed to City by Licensee. The Administrate Fee will be fully earned by the City and non-refundable in whole or in part upon Licensee's written acceptance of this Second Amendment. 4. Mutual Release. As of the Effective Date, but conditioned upon, and in consideration of, the full and timely performance of all terms and conditions of this Second Amendment in the manner prescribed herein, City and Licensee, on behalf of themselves, all of their predecessors -in -interest and successors -in -interest, heirs, and assigns (collectively "Releasing Parties"; individually "Releasing Party"), shall and hereby do release, relieve, and forever discharge one another and their respective successors, successors -in -interest, predecessors, predecessors -in -interest, shareholders, members, managers, partners, representatives, officials and officers, directors, agents, employees, volunteers, attorneys, insurers, assigns, joint ventures, divisions, groups, executors, administrators, sublessees, licensees, colocators, wireless service providers, all parent and subsidiary entities, and affiliated entities (collectively "Released Parties"), from any and all claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs, expenses (including, but not limited to, attorneys' fees and costs and expenses), damages, actions, or causes of action of any kind or nature, whether now known or unknown, suspected or unsuspected, anticipated or unanticipated, proven or unproven, which the Releasing Parties ever had, now have, or may, shall, or can hereinafter have or acquire arising out of, concerning, pertaining to, or in any way connected with, the License, as well as any use of the Property in connection with the License by Licensee, its employees and/or contractors, and/or any of the acts, facts, or transactions alleged by either Party or any of the Released Parties and/or Releasing Parties with regard to the foregoing that arose from acts or omissions before the Effective Date (collectively "Released Claims"). 5. No Admission of Liability. The Parties executed this Second Amendment pursuant to a compromise and settlement without any admission of liability to each other, and is made for purposes of avoiding costly litigation on disputed claims, uncertainty, controversy, and further legal expense. Without limiting the foregoing, nothing contained in this Second Amendment, shall be taken or construed to be an inference or admission by any Party, or as evidence or indication, in any degree, of the truth or correctness of any claims or defenses asserted by the Parties in connection with the Property and License. 6. City's Rights to Remove and Dispose After Termination. Notwithstanding any provision in the License, if Licensee fails to remove its Telecommunications Facilities from the Property by Thursday December 1, 2016 at 11:59 p.m. Pacific Time, Licensee authorizes City at Licensee's sole cost and expense to remove Licensee's the Telecommunications Facilities from the Property. The City may in its sole discretion destroy or dispose of the Telecoliununications Facilities by any means without any liability to Licensee or any third party. No notice of any kind from the City to Licensee is required prior to the City taking any action or actions permitted pursuant to this Section 6. 7. Licensee to Reconvey Interests in Property Upon Termination. Within thirty (30) days after December 1, 2016, Licensee shall execute a quitclaim deed, thereby relinquishing its Page 2 of 6 interest in the Property to the City; the City shall be entitled to record the quitclaim deed in the County of Marin. 8. Miscellaneous. 8.1. Capitalized Terms. All capitalized terms used in this Second Amendment shall have the same meaning as defined in the License, unless otherwise defined in this Second Amendment. 8.2. Construction. City and Licensee acknowledge that each has had the opportunity to consult with counsel and participate in the drafting of this Second Amendment, accordingly the Parties intend that this document shall not be construed against the drafter. If any inconsistencies arise between the License and this Second Amendment, this Second Amendment shall control. 8.3. Reaffirmation; Intention to be Bound. Except as amended in this Second Amendment, all other terms and conditions in the License are ratified and will remain in full force and effect. The Parties executing this Second Amendment, for themselves and their successors and assigns, acknowledge and reaffirm their intention to be bound by the terms and conditions in the License as modified by this Second Amendment. As to any conflicts between the License and this Second Amendment, this Second Amendment shall in all ways control. 8.4. Execution. Licensee shall execute this Second Amendment first and deliver three (3) partially executed originals to City. City shall then execute this Second Amendment and deliver one (1) fully executed copy to Licensee. 8.5. Authority. City and Licensee both warrant and represent to the other that it has the right, power, legal capacity and legal authority to enter into and perform their respective obligations under this Second Amendment. It is so agreed by LICENSEE T -Mobile West LLC, a Delaware limited liability company as successor -in -interest to Pacific Bell Wireless, LLC, a Nevada limited liability company By: WV ai APpiov 4 Name: William Daugherty s-Mobi,- ` Bri Appy Kevi Market Director Title: Date: \A\A\ y Page 3 of 6 and CITY City of San Rafael, California, a California municipal corporation JIM H TZ, City M ger ATTEST: '. G. FW-00e.- ESTHER C. BEIRNE, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, City Attorney [ACKNOWLEDGEMENTS APPEAR ON NEXT PAGE] Page 4 of 6 LICENSEE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California I County of I,n6 On t �L).-t (7-) 13 before in&.q lCe- Ino , notary public, msert name of the officer) personally appeared i proved to me on the basis of satisfactory evidence to ber the pers whose name(s� is/afe- subscribed to the within instrument and acknowledged to me that he/gh44w, executed the same in his/herLtheif-authorized capacity(-iesfi, and that by his/h Edhe"ignature(s) on the instrument the person(s�y; or the entity upon behalf of which the person(s) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Signature�,,� BERNICE LEDINO Commission # 2065681 z:� ~ , Notary Public - California a z �ra� Contra Costa County My Comm Expires Apr 25, 2018 Page 5 of 6 (Seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of f (I P1 N On .d C wgeg m, P-J/L' before me, G 9 � /1.)0 (insert name and title of the officer) personally appeared 'j f M 5e- 1-4 D '2— who who proved to me on the basis of satisfactory evidence to be the person(s) whose name(so/are subscribed to the within instrument and acknowledged to me th.Ce/she/they executed the same in j!� /her/their authorized capacity(ies), and that by &/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature `' /?;,0` (Seal) E. BEIRNE c COMM. #2112433 z _ Notary Public • California Marin County My Comm Expires June 10,, 20191 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Fire Department Project Manager: Bob Sinnott Extension: 5067 Contractor Name: T -Mobile West Corp Contractor's Contact: Bradford Kuhn Contact's Email: bkuhn@nossman.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor NA NA b. Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement Click here to and return to Project Manager enter a date. ❑ b. Confirm insurance requirements, create Job on Click here to PINS, send PINS insurance notice to contractor enter a date. ❑ 3 Project Manager Forward three (3) originals of final agreement to NA ❑ contractor for their signature 4 Project Manager When necessary, * contractor -signed agreement ® N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000 or Or ❑ Public Works Contract > $125,000 Date of Council approval Click here to enter a date PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City 10/17/16 RBS Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed /G'/1 ]( (y -^ agreement 7 City Attorney Review and approve insurance in PINS, and bonds /V,+ Z (for Public Works Contracts) 8 City Manager / Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager 0-1 �'