HomeMy WebLinkAboutResolution 2004-153 beacon hill communications site lease and settlement agreementMARANA RESOLUTION NO. 2004-153
RELATING TO REAL ESTATE; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE THE BEACON HILL COMMUNICATIONS SITE LEASE AND SETTLEMENT
AGREEMENT; AND DECLARING AN EMERGENCY.
WHEREAS, since approximately 1993, Marana Police Department ("MPD")
communication equipment has continuously been located on Beacon Hill, located west of
Continental Ranch; and
WHEREAS, the Town has not had a formal agreement to locate the MPD communication
equipment on Beacon Hill since 1999; and
WHEREAS, the Town desires to execute a formal lease to allow the Town to install a
new communication system on Beacon Hill and to compensate the owner of Beacon Hill for the
Town's past use of the site without a formal lease; and
WHEREAS, the Mayor and Council of the Town of Marana feel it is in the best interests
of the public to enter into this lease.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, that the Beacon Hill Communications Site Lease and
Settlement Agreement, attached to and incorporated by this reference in this resolution as
Exhibit A, is hereby approved, and the Mayor is hereby authorized to execute it for and on
behalf of the Town of Marana.
IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed
and authorized to undertake all other and further tasks required or beneficial to carry out the
terms, obligations, and objectives of the agreement.
PASSED AND ADOPTED .B,~i]'~iI~..MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 4th d~a~.~~4}j~05.
ATTEST: __
~1~ C. ~nson, T~Cierk . . ~.¢ Ca~owh Att~y
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Beacon Hill Communications Site Lease and Settlement Agreement
THIS AGREEMENT is entered into by and between the TOWN OF MARANA, an Arizona
municipal corporation ("Town") and THE ESTATE OF IRENE WELTER, DECEASED, BY AND
THROUGH HER PERSONAL REPRESENTATIVE, BILL WELTER ("Welter"). The Town and Welter are
sometimes referred to collectively as the Parties.
RECITALS
A. Welter owns the parcel of land (the "Land") and communications tower (the "Tower")
particularly described in paragraph 1 below.
B. In or around 1993, the Town began paying Comtronix (which was later bought out by
Nextel Communications) a monthly fee for the operation of the Marana Police Department
("MPD") communication system.
C. In approximately 1999, Nextel ceased operating MPD's communication system, and
donated the equipment then being used by MPD to the Town.
D. The MPD communication equipment has continuously been located on the Land since
approximately 1993, when Comtronix placed MPD's radio communications repeater equipment
within a small building on the Land (the "Building") and attached an antenna to the Tower.
E. From about 1999 to the date of this Agreement, the Town has not paid for a lease or
sublease for the purposes of having its equipment located on the Land.
F. The Town is in the process of replacing its MPD communications system with a new
system.
G. To accommodate the new MPD communications system, the Building needs to be
substantially improved.
H. Communications equipment owned by third parties is currently located in the
Building, but like the Town none of these third parties has a current lease with Welter.
I. Welter wants to control whose communications equipment is located on the Land and
will therefore not permit the Town to sublease space within the Building to third parties.
J. The Parties now desire to formalize a lease to allow the Town to refurbish and rebuild
the Building, to allow MPD communications equipment to continue to be located in the
Building, and to compensate Welter in settlement of Welter's claim to compensation for the
Town's past use of the Building and the Tower.
AGREEMENT
NOW, THEREFORE, based on the foregoing Recitals, which are incorporated here by this
reference, the Parties agree as follows:
1. Premises. T he "Premises" that are the subject of this Agreement consist o fall o fthe
following: (a)the Building and the approximately 600 square feet of the Land where the
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Building is located and a reasonable area immediately surrounding the Building to accommodate
the Town Facilities (see paragraph 10 below, (b)antenna space on the Tower located.on the
Land, and (c)and all access and utility easements necessary or desirable for the use of the
Building and the Tower for the installation and maintenance of the Town communication
equipment. The Land is located in the northwest quarter of Section 17, Township 12 South,
Range 12 East, Gila & Salt River Meridian, Town of Marana, County of Pima, State of Arizona,
at the top of Beacon Hill, and more particularly identified as Pima County Assessor Tax Parcel
No. 226-03-033B.
2. Lease. Welter hereby leases the Premises to the Town for a ten year period of January 1,
2005 through December 31, 2014.
3. Effective Date. This Agreement shall be effective on the date it is fully executed by the
Parties (the "Effective Date").
4. Settlement and Release. Welter hereby releases all claims of whatever nature for the
Town's past use of the Land and/or the Premises through December 31, 2004, effective upon the
Town's single lump sum payment of $40,000, which shall be paid within fifteen business days
following the Effective Date.
5. Information. Upon Town's request, Welter agrees to provide promptly to Town copies of
all plans, specifications, surveys and maps in Welter's possession relating to the Land, the
Tower, and the elevation of all antennas on the Tower and the frequencies upon which each
operates.
6. Rent. Within fifteen business days following the Effective Date and on the first day of
each month thereafter, Town shall pay to Welter as rent Eight Hundred and no/100 Dollars
($800.00) per month, adjusted as follows (all of which together constitutes "Rent"):
a. Annual adjustment. Each January 1 beginning on January 1, 2006, the previous
year's rent (excluding the additional amount set forth in paragraph 6(b) below) shall be
adjusted upward by 3%. As so adjusted, this shall be the amount paid as rent (not including
the additional amount set forth in paragraph 6(b) below) for that calendar year.
b. Adjustments for tax and other costs. The Town shall pay any incremental increase in
taxes or other costs owed by the Welters relating to the Land and resulting from the Town's
rental or use of the L and, including without limitation any property, rental, sales, use, or
other taxes levied by any governmental entity, or the Town's proportionate share of any
costs validly imposed on the Land by a third party including, by way of example, any
proportionate costs of access to the Land.
7. W-9. Welter shall provide Town an accurate and executed W-9 Form.
8. Use. While this Agreement is effective, the Town may use the Premises for any lawful
activity in connection with the provision of communications services necessary for the Town's
municipal and governmental operations. The Town is not permitted to use the Premises to
provide third-party communications services.
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9. Cooperation. Welter shall cooperate with To~vn in making, at Town's expense,
application for and obtaining all licenses, permits and any and all other necessary approvals that
may be required for Town's use of the Premises in a manner consistent with paragraph 8 above.
10. Town Facilities. On the Premises, Town has the right to construct, erect, maintain, test,
replace, remove, operate and upgrade Town's communications facilities, including without
linfitation utility lines, transmission lines, an air-conditioned equipment shelter (the Building),
electronic equipment, transmitting and receiving antennas, a standby power generator, and
supporting equipment and structures for all of the foregoing (all of which together are referred to
as the "Town Facilities"). Town has the right to do all work necessary to prepare, maintain and
alter the Premises for Town's communications operations and to install transmission lines
connecting the antennas to the transmitters and receivers. All of Town's construction and
installation work shall be performed at Town's sole cost and expense and in a good and
workmanlike manner. Town shall hold title to the Town Facilities and all of the Town Facilities
shall remain Town's personal property and are not fixtures. Town has the right to remove the
Town Facilities at its sole expense on or before the expiration or earlier termination of this
Agreement, and Town shall repair any damage to the Premises caused by that removal. Upon
the expiration or earlier termination of this Agreement, Town shall remove the Town Facilities
from the Land.
11. Utilities. Town shall pay for the electricity it consumes in its operations at the rate
charged by the servicing utility company. Town shall have the right to draw electricity and other
utilities from the existing utilities on the Property or obtain separate utility service from any
utility company that will provide service to the Property. Welter agrees to sign such documents
or easements as may be required by said utility companies to provide such service to the
Premises, including the grant to Town or to the servicing utility company at no cost to the Town,
of an easement in, over, across or through the Land as required by such servicing utility company
to provide utility services as provided herein. Any easement necessary for such power or other
utilities will be at a location acceptable to Welter and the servicing utility company.
12. Access. Town, Town's employees, agents and contractors shall have access to the
Premises without notice t o Welter 2 4 h ours a d ay, s even days a week, at n o charge. Welter
grants to Town, and Town's agents, employees and contractors, a non-exclusive right and
easement for pedestrian and vehicular ingress and egress across the Land as necessary to install
and maintain the Town Facilities. If vehicular or utility access to the Land is blocked or
interrupted, Welter shall cooperate with the Town in any legal action, at Town's expense, to re-
establish the access.
13. h~terference.
a. Town shall operate the Town Facilities in compliance with all Federal
Communications Commission ("FCC") requirements a nd i n a manner t hat w ill not cause
interference with the communication facilities maintained on the property by Marana
Unified School District, Verizon, and any other lessees of the property.
b. Welter shall not, and shall not permit its lessees or licensees to, install new equipment
on or make any alterations to the Premises or the Land that are likely to cause interference
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with the operation of the Town Facilities. If interference occurs, Welter shall use best
efforts to eliminate the interference within a reasonable period of time. ..
14. Taxes. If personal property taxes are assessed, Town shall be responsible for any portion
of such taxes directly attributable to the Town Facilities. Welter shall pay all real property taxes,
assessments and deferred taxes on the Property.
15. Waiver of Lien. Welter waives any lien rights Welter may have concerning the Town
Facilities, all of which are deemed Town's personal property and not fixtures, and Town has the
right to remove the same at any time without Welter's consent.
16. Termination. This Agreement may be terminated without further liability on thirty days'
prior written notice by either Party upon a default by the other Party of any covenant or term of
this Agreement, which default is not cured within sixty days of receipt of written notice of
default, except that this Agreement shall not be terminated if the default cannot reasonably be
cured within such sixty-day period and the defaulting party has started to cure the default within
the sixty day period and diligently pursues the cure to completion; provided that the grace period
for any monetary default is ten days from receipt of written notice.
17. Destruction or Condemnation. If the Premises or Town Facilities are damaged,
destroyed, condemned or transferred in lieu of condemnation, Town may elect to terminate this
Agreement as of the date of the damage, destruction, condemnation or transfer in lieu of
condemnation by giving notice to Welter no more than forty-five days following the date of such
damage, destruction, condemnation or transfer in lieu of condemnation.
18. Insurance. Town, at Town's sole cost and expense, shall procure and maintain on the
Premises and on the Town Facilities, bodily injury and property damage insurance with a
combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per
occurrence. Such insurance shall insure, on an occurrence basis, against all liability of Town, its
employees and agents arising out of or in connection with Town's use of the Premises, all as
provided for in this Agreement. Welter, at Welter's sole cost and expense, shall procure and
maintain on the Land, bodily injury and property damage insurance with a combined single limit
of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall
insure, on an occurrence basis, against all liability of Welter, its employees and agents arising out
of or in connection with Welter's use, occupancy and maintenance of the Land. Each party shall
be named as an additional insured on the other's policy.
19. Waiver of Subrogation. Welter and Town release each other and their respective
principals, employees, representatives and agents, from any claims for damage to any person or
to the Property or the Premises or to the Town Facilities or any other property thereon caused by,
or that result from, risks insured against under any insurance policies carried by the parties and in
force at the time of any such damage. Welter and Town shall cause each insurance policy
obtained by them to provide that the insurance company waives all right of recovery by way of
subrogation against the other in connection with any damage covered by any policy. Neither
Welter nor Town shall be liable to the other for any damage caused by fire or any of the risks
insured against under any insurance policy required by Paragraph 18 above.
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PAGE 4
20. Liability and Indemnity. Welter and Town shall each indemnify, defend and hold the
other harmless from and against all claims, losses, liabilities, damages, costs, and expenses
(including reasonable attorneys' and consultants' fees, costs and expenses) (collectively
"Losses") arising from the indemnifying party's breach of any term or condition of this
Agreement or from the negligence or willful misconduct of the indemnifying party's agents,
employees or contractors in or about the Land. The duties described in this paragraph shall
apply as of the Effective Date of this Agreement and survive the termination of this Agreement.
21. Assignment and Subletting. Town may not assign, or otherwise transfer, all or any part
of its interest in this Agreement or in the Premises without the prior written consent of Welter.
Welter m ay assign t his Agreement, which assignment m ay b e evidenced b y written notice t o
Town within a reasonable period of time thereafter, provided that the assignee assumes all of
Welter's obligations under this agreement. This Agreement shall be binding on and inure to the
benefit of the successors and permitted assignees of the Parties.
22. Binding Effect. This Agreement shall run with the Land and shall be binding upon and
inure to the benefit of the Parties, their respective successors, personal representatives, heirs and
assigns.
23. Warranty of Title and Quiet Enjoyment. Welter warrants that: (i) Welter owns the Land
in fee simple and has rights of access to it and the Land and improvements on it are free and
clear of all liens, encumbrances and restrictions except those of record as of the Effective Date;
and (ii) Welter covenants and agrees with Town that Town may peacefully and quietly enjoy the
Premises, provided that Town is not in default under this Agreement after notice and expiration
of all cure periods.
24. Repairs. Town shall repair any damage to the Premises or the Land caused by the
negligence or willful misconduct of Town. Upon expiration or termination of this Agreement,
Town shall repair the Premises and the Land to substantially the condition in which it existed on
the Effective Date, reasonable wear and tear and loss by casualty or other causes beyond Town's
control excepted.
25. Hazardous Material.
a. As of the Effective Date of this Agreement: (1) Town hereby represents and warrants
that it has not and shall not use, generate, handle, store or dispose of any Hazardous Material
in, on, under, upon or affecting the Land in violation of any Environmental Law (as defined
below), and (2) Welter hereby represents and warrants that (i) Welter has no knowledge of
the presence of any Hazardous Material located in, on, under, upon or affecting the Land in
violation o f a ny Environmental Law; (ii) n o notice h as been received b y or o n behalf o f
Welter from, and Welter has no knowledge that notice has been given to any predecessor in
interest of the Land, by any governmental entity or any person or entity claiming any
violation o f o r requiring compliance with a ny Environmental Law for a ny environmental
damage in, on, under, upon or affecting the Land; and (iii) Welter will not permit itself or
any third party to use, generate, handle, store or dispose of any Hazardous Material in, on,
under, upon, or affecting the Land in violation of any Environmental Law.
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b. Without limiting paragraph 20 above, Welter and Town shall each indemnify, defend
and hold the other harmless from and against all Losses arising from (i) any breach of any
representation or warranty made in this paragraph 25 by such Party; and/or
(ii) environmental conditions or noncompliance with any Environmental Law (as defined
below) that result, in the case of Town, from operations in or around the Land by Town or
Town's agents, employees or contractors, and in the case of Welter, from the ownership or
control of, or operations in or around, the Land by Welter or Welter's predecessors-in-
interest, and their respective agents, employees, contractors, owners, guests or other parties.
The duties described in this paragraph 25 shall apply as of the Effective Date of this
Agreement and survive termination of this Agreement.
c. "Hazardous Material" means any solid, gaseous or liquid wastes (including hazardous
wastes), regulated substances, pollutants or contaminants or terms of similar import, as such
terms are defined in any Environmental Law, and shall include, without limitation, any
petroleum or petroleum products or by-products, flammable explosives, radioactive
materials, asbestos in any form, polychlorinated biphenyls and any other substance or
material which constitutes a threat to health, safety, property or the environment or which
has been or is in the future determined by any governmental entity to be prohibited, limited
or regulated by any Environmental Law.
d. "Environmental Law" means any and all federal, state or local laws, rules,
regulations, codes, ordinances, or by-laws, and any judicial or administrative interpretations
thereof, including orders, decrees, judgments, rulings, directives or notices of violation, that
create duties, obligations or liabilities with respect to: (i) human health; or (ii)
environmental pollution, impairment or disruption, including, without limitation, laws
governing the existence, use, storage, treatment, discharge, release, containment,
transportation, generation, manufacture, refinement, handling, production, disposal, or
management of any Hazardous Material, or otherwise regulating or providing for the
protection of the environment.
26. Miscellaneous.
a. This Agreement constitutes the entire agreement and understanding between the
Parties, and supersedes all offers, negotiations and other agreements concerning the subject
matter of this Agreement. Any amendment to this Agreement must be in writing and
executed by both Parties.
b. Both Parties represent and warrant that their use of the Land and their personal
property located on it is in compliance with all applicable, valid and enforceable statutes,
laws, ordinances and regulations of any competent government authority.
c. 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, shall not be affected and each
provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
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d. Any notice or demand required to be given under this Agreement shall be made by
certified or registered mail, return receipt requested, or reliable overnight courier, to the
address of the respective parties set forth below:
Welter: Town:
c/o Bill Welter
2341 S Calle Mesa del Oso
Tucson, Arizona 85748
Town of Marana
13251 N. Lon Adams Road
Marana, AZ 85653
Attn: Anthony Casella
Phone: 520-382-2500
With a copy to:
Marana Town Attorney
13251 North Lon Adams Road
Marana, Arizona 85653-9723
Welter or Town may from time to time designate any other address for this purpose by
written notice to the other Party. All notices under this Agreement shall be deemed
received upon actual receipt.
e. This Agreement shall be governed by the laws of the State of Arizona.
f. This Agreement shall be recorded by and at the expense of the Town in the office of
the Pima County Recorder.
g. If the Land is encumbered by a mortgage or deed of trust, Welter agrees to obtain and
deliver to Town an executed and acknowledged non-disturbance and attomment instrument
for each such mortgage or deed of trust in a recordable form reasonably acceptable to both
parties.
h. Welter agrees to fully cooperate, including executing necessary documentation, with
Town to obtain information and documentation clearing any outstanding title issues that
could adversely affect Town's interest in or right to use the Premises created by this
Agreement.
i. In any case where the approval or consent of one Party is required, requested or
otherwise to be given under this Agreement, such Party shall not unreasonably delay or
withhold its approval or consent.
j. Each of the Parties represent and warrant that they have the right, power, legal
capacity and authority to enter into and perform their respective obligations under this
Agreement.
k. The captions and headings in this Agreement are for convenience onlY and in no way
define, limit or describe the scope or intent of any provision of this Agreement.
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TOWN OF MARANA/WELTER LEASE & SETTLEMENT AGREEMENT PAGE 7
1. This Agreement may be executed in duplicate, each of which shall be deemed an
original, and may be executed in counterparts with multiple signature pages being .attached
together to fonrt a single document.
m. This Agreement is subject to the provisions of A.R.S. § 38-511, which provides for
cancellation of contracts by government entities in certain instances involving conflicts of
interest.
n. Nothing in this Agreement shall interfere with the Town's right or ability to comply
with all obligations imposed by law on Arizona municipalities.
o. Welter shall be responsible for compliance with all marking and lighting
requirements of the Federal Aviation Administration ("FAA") and the FCC. Should Town
be cited because the Tower, the Premises or the Land is not in compliance and should
Welter fail to cure the cor~:.litions of noncompliance, Town may either terminate this
Agreement or proceed to cm'e the conditions of noncompliance at Welter's expense, which
amounts may be deducted from the Rent.
I.N WITNESS WHEREOF, the Parties have executed this Agreement as of the date of the last
signature below.
TIlE TOWN OF MARANA, an Arizona
mumcipal corporation
THE ESTATE OF IRENE WELTER, DECEASED,
BY AND THROUGH HER PERSONAL
REPRESENTATIVE, BILL WELTER
BY:
By:
It s:
It s:
Date':
Date:
ATTEST: ·
Jocelyn C. Bronson, Town Clerk
_APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
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TO}~N OF MARANA/WELTE£ LEASE &'SETTI. E!.4ENT AGREEMENT PAGE8
STATE OF ARIZONA )
) SS.:
COUNTY OF PIMA )
The foregoing instrument was acknowledged before me this __ day of
2005, by Bill Welter, as Personal Representative of the Estate of Irene Welter, deceased.
Seal
Notary public
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