HomeMy WebLinkAboutResolution 2015-004 Beacon Hill CommunicationsMARANA RESOLUTION NO, 2015 -004
RELATING TO TECHNOLOGY SERVICES; APPROVING AND AUTHORIZING THE
MAYOR TO EXECUTE A BEACON HILL COMMUNICATIONS SITE LEASE
AGREEMENT WITH THE ESTATE OF IRENE WELTER AND A BEACON HILL
COMMUNICATIONS SITE SUBLEASE AGREEMENT WITH SIMPLY BITS, LLC; AND
ESTABLISHING AN EFFECTIVE DATE
WHEREAS the Town of Marana has a lease with the Estate of Irene welter, Deceased
( "Welter ") for a communications site on Beacon Hill and a sublease with Simply Bits, LLC al-
lowing its facilities to be located on the Town's leased site; and
WHEREAS the Beacon Hill lease and sublease terms expired on December 31, 2014; and
WHEREAS the Town of Marana desires to extend its Beacon Hill lease and sublease to
maintain Town of Marana communications infrastructure; and
WHEREAS the Town Council finds that the adoption of this resolution is in the best in-
terests of the Town and its residents.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANAA, as follows:
Section 1 . The Beacon Hill Communications Site Lease Agreement with welter attached
to and incorporated by this reference in this resolution as Exhibit A and the Beacon Hill Com-
munications Site Sublease Agreement with Simply Bits attached to and incorporated by this ref-
erence in this resolution as Exhibit B are hereby approved, and the Mayor is hereby authorized to
execute there for and on behalf of the Town of Marana.
Section 2 . The Town's Manager, Technology Services Director, and staff are hereby di-
rected and authorized to undertake all other and further tasks required or beneficial to carry out
the terms, obligations, and objectives of the agreements referenced in Section I of this resolu-
0
tion.
Section 3 . This resolution is an administrative act and shall be effective immediately up-
on its passage.
f 00040554.DOCX /�
Marana Resolution No. 2015 -004 12/23/2014 11.10 AM FJC
PASSED AND ADOPTED b the Ma and Council of the Town of Marana, Arizona,
this 6th da of Januar 2015.
ATTEST:
J cel C. ronson, Town Clerk
Z'
*WW N
4 �Jrlz�OP4�N
Ma Ed Honea
(00040554.DOCX /)
Marana ReSOILItion No. 2015-004 - 2 - 12/23/2014 11:16 AM FJC
F. ANN RODRIGUEZ, RECORDER
Recorded B KSH
DEPUTY RECORDER
4934
SMARA
TOWN OF MARANA
PICKUP
���R ��q SEQUENCE:
20150090189
'4 NO. PAGES:
13
Ile LEASE 01/09/2015
_ 11:42
PICK UP
AMOUNT PAID: $11.00
Beacon Hill C ommu.nicat ions Site Lease A
between
Town of Marana and Estate of Irene Welter
Ttus AGREEMENT' is entered into b and between the T OWN OF MARA NA, an.
Arizona municipal corporation ( "Tows. ") an.d. TFIE ESTATE OF IRENE WEI_,TER, Dtivl_ ,ASS D.
BY AND TI-IR-OUGHHER PERSONAL REPRESEN'TATIVE, BILI, WEI.,17ER ("'Welter"). The Town
and Welter are sometimes referred to collectivel as the Parties.
RECITALS
A. Welter owns a parcel of land (the ``rand. " and a communications tower on the
Land (the "'Tower,"). The Land is located in the northwest q uarter of Section. 17,
Township 12 South, Ran 12 East, Gila & Salt River Merida aril, Town of Marana,
Count of Pima, State of Arizona, at the top of Beacon Hill, and more particularl
identified as Pima Count Assessor Tax Parcel No. 226-03.0338. Collectivel the Land
and the Tower are sometimes referred to as the "'Propert
B. In or around 1993, the'rown be pa Comtronix (which was later -bou
out b Nextel Communications) a monthl fee for the operation of the Mar,-,Ina Police
Department ("MPD" communication s
C. In. approximatel 1999, Nextel ceased. operatin MPUs communication
s and donated the e then bein used. b M'PD to the Town..
D. The MPD communication e has continuousl been. located on the
Land since approximatel 1993, when Comtronix placed. MPUs radio communications
repeater e within a small buildin on the Land. (tree "".Buildin and attached
an antenna to the Tower.
E. In 2005, the Parties f or m.alized a lease to allow the Town to refurbish. and
rebuild the Buildin to allow MPD communications e to continue to be
located in the Buildin and to compensate Welter in, settlement of Welter's claim to
compensation. for the Town's past use of the Buildin and the Tower. The "'Beacon Hill
Communications Site Lease and Settlement A between the Parties was
recorded in the Pima Count Recorder's office on. Januar 14, 2005, at Docket 12469,
Pa 3461 (the "'Ori A
F. Followin execution of the Ori A the Town refurbished and
rebuilt the Buildin (the "'Rebuilt Buildin
100040412DOC 11 12/11/2014
'FOWN OF MARANAIW13LTER LEASI_' PA. GE I
13
G In, 2009, the Parties entered into the "First Amendment to Beacon Hill
Communications Site Lease and Settlement A recorded in. the Pima Count
Recorder's office on December 30, 2010 at Docket 1.3966, Pa 415 ( the "First
An-tendment" Para 2 of the First Amendment authorized the Town to sublease
the Premises, described in the Ori A as consistin of all of the followin
-
(a) the Buildin and the approximatel 600 s feet of the Land where tl.-i,e Buildin
is located and. a reasonable area immediatel surroundin the Buildin to accommodate
the Town Facilities, M antenna space on the Tower located on the Land, and (c) a.1.1
access and utilit easements necessar or desirable for the use of the Buildin and the
Tower for the installation and maintenance of the Town communication e to
a third-part vendor, Simpl Bits, LLC, ( "'Simpl y , Bits"), for purposes of allowin
e previousl installed on the Premises b Simpl Bits to remain on the
Premises.
H. In. 2011, th-e Parties entered. into the "Second Amendment to Beacon Hill
Communications Site Lease" recorded in. the Mina Count Recorders office on.
Februar 16, 2011 at Se Number 20110470647 (the " econd Amendment"") to
allow Simpl Bits to place additional e on. the Premises and to modif Simpl
0
Bits' monthl rent for the e on the Premises.
1. The tern-i of the Ori A ends on December 31, 2014, and the
Parties now desire to enter into this A to allow the Town to continue to lease
the Premises for its communi cations site and to allow the Town to continue to sublease
the Premises and Rebuilt Buildin to Simpl Bits as set forth herein.
AGREEMENT
Now, THEREFORE, based on. the fore Recitals, which are incorporated here
b this reference, the Parties a as follows.-
1. Preinises. The "Premises" that are the subject of this A consist of all of
the followin (a) the approximatel 600 s feet of the Land where the Rebuilt
Buildin is located and a reasonable area immediatel surroundin the Rebuilt Buildin
to accommodate theT"own Facilities (see para 11 below), (b) antenna space on the
Tower located on the Land, and (c) all access and utilit easements necessar or
desirable for the use of the Rebuilt Buildin and the Tower for the installation. and
maintenance of the Town communication e The Premises leased to the Town
b Welter do not include the Rebuilt Buildin the Parties expressl a and
acknowled that the Rebuilt Buildin is a part of the Town Facillfies as described in
para 11 below.
f00040412DOC /1 1.2/1.1/2014
TOWN OF MA. RA NA IWELTER LEASE PAGE - 2 -
2. Lease. Welter hereb leases the Premises to the Town for a ten- period of
J anuar y 1, 201.5 throu December 31, 2024. The lease will automaticall renew for up
to two successive ten- periods on the same terms and conditions as set forth h.erein,
urdess sooner terminated as provided in this A
3. Stiblease to Simpl Bits. The Town is hereb authorized to enter into a sublease of
the Premises and Rebuilt Buildin with. Simpl Bits for purposes of allowin the Simpl
Bits e allowed on the Premises and Rebuilt Buildin pursuant to the Second
Amendment to remain. on the Premises and Rebuilt Buildin Sim-pl Bits shall be
permitted to maintain no more than. a total of three dishes and a total of up to nine
s feet of panel or sector antennas at four attach m-ei.-It points on the Premises and
Rebuilt Buildin collectivel An increase in the size or number of Simpl Bits antennas
or dishes on the Premises and Rebuilt Buildin re Welter's and the Town's prior
w *tten approval.
ri
4. Effective Date. This A shall be effective on Januar 1, 2015 (the ""Effective
Date"").
5. Its format ion . Upon Town's re Welter a to provide promptl to Town
copies of all plans, specifications,, surve and. maps in Welter's possession relatin to
the Land-, the Tower, and. the elevation of all antennas on the'-fow-er and the fre
upon -which each operates.
6..Rent.
a. Within. 15 business da followin the Effective Date and on the first da of
each month thereafter, Town sha.11 pa to Welter as rent $1,100.10 per month (the
"Monthl Base Rent").
b. Within 15 business da followin the Effective Date and on. the first da of
each month thereafter for so lon as the Town's sublease with Simpl Bits remains in
effect, the Town shall collect from Simpl Bits $450.20 per month and pa to Welter
as sublease rent $337.65 per month (the "'Sublease Rent" .
c. Each f a nu a.r 1. be on. f an ar 1, 2016, the previous y ear's Mon tfil
Base Rent and the previous y ear's Sublease Rent (excludin the additional. amount
set forth in para 6(d) below) steal be ad upward b 3%. As so adjusted,
these amounts shall be the amounts paid (not includin ttte additional amount set
forth in para 6(d) below) for that calendar y ear.
d. The Town. shall pa an incremental increase in taxes or other costs owed. b
Welter relatin to the 'Land and resultin from the Town.s rental or use of the I.
10004041.2.DOC /1 1.2/11/2014
Tc)iA/N OF MAR Nill WELTI"R IXASE PAGE 3
-tout
or, from the Towns sublease of the Premises to Simpl Bits includin witl
lim.1tation an propert rental., sales, use,, or other taxes levied. b an
g overnmental entit or the Town-s proportionate share of an costs validl
imposed on the Land b a thIrd part includin b wa of example, an
proportionate costs of access to the Land,
7. Effect of Defatilt b Simpl Bits. The pass-throu arran for transferrin
pa from Simpl Bits to Welter as reflected in, this A is bein done as a
matter of administrative convenience to the Parties. To that en.d., the Town shall not be
independentl responsible for pa of the Sublease Rent if Simpl its fails to pa
the Sublease Rent to the Town when. due. However if Simpl Bits fails to make timel
pa of the Sublease Rent, Welter shall have the ri to demand that the Town
remove all Simpl Bits e( from the Premises and Rebuilt Buildin in addition to
an other remed Welter ma have as a matter of law.
8. W-9. Welter shall. provide Town an accurate and executed W-9 Form.
9. Use. Wh this A is effiective, the Town ma use th.e Premises for an lawful
activit in connection. with the provision of communications services necessar for the "Fown.'s
municipal and g overn-mental operations. The Town is not permitted, to use the Premises to
provide third -part communications services other than those addressed in this
A
10. Cooperation. Welter shall cooperate with Town in makin at Town's expense,
A�
application for and obtainm all. ficenses, permits and an and all. other necessar
approvals that ma be re for Town's use of the Premises in a manner consistent
with para 9 above.
1 1. Tou)n Facilities. On the Premises, Town has the ri to construct, erect, mainlain,,
test, replace, remove, operate and up Town's commun i cations facilities, includin
w ithout limilation. utilit lines,, transmission lines an. air-condit 'toned e
shelter, electronic e transmittin and receivin antennas, a standb power
g enerator, and supportin e and structures for all of the fore includin
the Rebuilt Buildin ( all. of which to are referred to as the "'Town Facilities"').
':down has the ri to do all work necessar to prepare,, maintain- and alter the Premises
for Town."s communications operations and to install transmission, lines connectin the
antennas to the transmitters and receivers. A.D. of Town's construction and installation
work shall be performed at Town's sole cost and expense and in a g ood and
workmanlike manner. Town shall hold, title to the Town Facilities and all of the Town
Facilities shall- remain, Town's personal propert and are not fixtures, includin the
Rebuilt Buildin 'town has the ri to remove the Town Facilities at its sole expense
on or before the expiration or earlier termination of this A and Town shall
1000404-1.2.DOC 11 12/11/2014
'FowN or MARANA. WELTER LEASE PAGE4
repair any damage to the Premises caused b that removal. Upon the expiratio n or
earlier termination of this Agreement, Town shall. remove th-e To n Facilities from the
Land.
12. UtIld lesv Town. shall. . pay for the electricity it consumes in Its operations at the
rate charged. by the servicing utility comp any. Town shall have the right to d. rater
electricity and other utilities from the existing utilities on the Property or obtain
separate utility service f roni any utility company that will provi e service t o t h.
Property. Welter agrees to sign such documents or easements as may be required b
said utility companies to provide such. service to the Town Facilities, including t he grant
to `'own or to the ser vicing utili comp at no cost t o the T own, 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 gill. be at a location acceptable to Welter and the servicing utility
company.
13. Access o rrown, Town' employees, agents and contractors stall have access to the
Premises without notice to Welter 2 4 hours a day, seven days a week, at no 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 acr the Land as
necessary to insta. ll and maintain the Town Facilities. If vehicular or utility access to the
Land. is 'blocked or interrupted, Welter stall cooperate with the Town in any legal
action., at Town's expense, to re-establish t he access. Welter acknowledges that Town's
rights of access under this paragraph. 13 may also be exercised by S imply Bits pursuant
to th term of its sublease with the T ow n.
• n.
1.4. eefere ce-
a. " `own. shall operate the Town. Facilities in compliance with all Federal
Communications Commission ("'FCC") requirements and in. a manner that will not
cause interfere zce with the communicatioi:1 facilities maintained on. the property by
any other lessees of the property.
too Welter shall not, and stall .not permit its lessees or licensees to, install new
equipment on or make an alterations to the Premises or the Land that are likely to
cause interference with the operation of the Town Facilities. If ���terfere�7.ce occurs,
Welter shall. use best efforts to eliminate the Interference within a reasonable period
of time
15. Taxcsa If personal _ property taxes are assessed, J-1 own shall be responsible for any
portion o such. taxes directly attributable to the 'Town Facilities. Welter shall pay all
real property taxes, assessments a nd deferred taxes on the Property.
f000404'1.2.DOC 11 -1- 2/1.
TOWN OF MARANA IWE-ITER LEASE PAGE 5
16. Waiver of Lien. Welter waives an lien ri Welter ma have concernin the
Town Facilities, all of which are deemed Town's personal propert and not fixtures,
and Town has the ri to remove the same at an time without Welter's consent.
17. Te riv ina [ion. This A ma y be terminated without further liabilit on
30 da prior written. notice b either Part upon a default 'by the other Part of an
covenant or term of this A which default is not cured within 60 da of receipt
of written notice of default, except that this A shall not be terminated if the
default cannot reasonabl be cured within such. 60-da period and the defaultin part
has started to cure the default within the 60-da period and dili pursues the cure
to completion; provided. that the g race period for an monetar default is ten da from
receipt of written. notice.
1.8. Destruction or Condemnation. If the Premises or 17own Facilities are dama
destro condemned or transferred in lieu of condemnation, Town. ma elect to
terminate th.is A as of the date of th.e dama destruction,' con.demnation or
transfer in lieu of condemnation. b g ivin g notice to Welter no more than. 45 da
followin the date of such dama destruction, condemnation or transfer in liet]. of
condemnation..
19. Mstirance.
a. Town, at Town's sole cost and expense, shall. procure and. maintain on the
Premises and on. the Town Facilities, commercial g eneral liabilit insurance with a
combined sin limit of at least $1_,000,000.00 per occurrence. Such insurance shall
insure, on an occurrence basis, a all liabilit of Town, its emplo and
a arlsin out of or in connection with .rown's use of the Premises, all as
provided for in this A
b. Welter, at Welter's sole cost and expense, shall procure and maintain on the
Propert commercial g eneral liabilit insurance with. a combined sin limit of at
least $1,000,000.00 per occurrence. Such insurance shall insure, on an occurrence
basis I
., a all. liabilit of Welter,, its emplo and a arisin out of or
connection with. Welter's use, occupanc and maintenance of the Propert
c. Each Part shall deliver one or more certificates of insurance evidencin
covera as described in this para 19 to the other Part upon, execution of thi.s
A Each Part shall also deliver new certificates of insurance each time the
polic is updated, All certificates sty all. be delivered. to the persons identified in
para 27 below for each Part
100040412.1)OC 12111/2014
T 6
7 "OWN 01 MA -RANA/ WEIA `R LEASE PAG
d. Eac h Party shall be gamed as an additional insures on. the other's policy.
Each Party shall. deliver additional. insured endorsemen-t(s) along with the required,
certificate(s) of insurance. 'The additional insured endorsement form identification
number shall also be included within the description. box on t he certificate of
insurance and. the applicable policy number shall he included on the endorsement.
e. Welter and Town. release eac h 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 'Tow s. Facilities or any other property -
t hereon. 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 otter for any damage caused by fire or any of the rises
insure .. against under any insurance po ficy required by this paragraph. 19.
o. Liability and Indem.nity. 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 Property. The
duties described. in this paragraph stall apply as of the Effective Date of this Agreement
and survive the termination of this Agreement.
1. Assignment and Stiblettin . Except as set forth in paragraph 3 above, 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 may assign this
Agreement, which assignment may be evidenced b written notice to Town within a
reasonable period of time thereafter, provided that the assignee assumes all of `e _ter" 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 . Siinpiy .fits' Right of Stiblease Assignnictit. Any assignment of Simply Bits' rights in
the sublease shall be subject to Welter "s prior written. approval, which shall not to
unreasonably withheld. However, Welter's prior approval shall not he required if the
assignment, sublet or transfer: (1) is as a result or part of a merger, consolidation, other
entity level transaction, or a transaction involving the sale of substantially all of Simply
Bits' assets; (ii) has a good faith business purpose which is not designed principally to
avoid the provisions of this paragraph, provided, however-, that such assignee, sublessee
100040412. )OC 1j 12/11/2014
or transferee has the expertise an.d. financial wherewithal to ful-fill. Simpl Bits"
obli under the sublease; or (iii) is to an. entit that controls, is under common.
control with or is controlled b Simpl Bits.
23. Bindin Effect. This A shall run with the Land and shall be bindin
upon and in.ure to the benefit of the Parties, their respective successors, personal
representatives, heirs and assi.
24. Warrant of Title and Qttiet Enjo Welter warrants that: (i) Welter owns the
Land in fee simple and h.aA,4--,- ri of access to it and the Land and improvements on it
are free and clear of all fiens, encumbrances and restrictions except those of record as of
the Effective Date; and (ii) Welter covenants and a with 'rows that Town ma
peacefull and q uietl y en the Premises, provided. that Town is not in default un.d.er
this A after notice and expiration of all cure periods.
25. Repairs. Town shall. repair an dam-a to the Premises or the Land caused b
the ne or willful misconduct of Town. Upon expiration or termination of this
A Town shall repair the Premises and the Land to substantiall the condition
in which it existed on the Effective Date, reasonable wear and tear and loss b casualt
or other causes be Town.'s control. excepted.
26. Hazardous Material .
a. .As of the Effective Date of this A (1} '.down hereb represents and
warrants that it has not and shall not use, g enerate, handle, store or dispose of an
Hazardous Material in, on, t.mder, upon. or affectin the Land in violation of an
Environmental Law (as defined. below), and (2) Welter hereb represents and.
warrants that (1) Welter has no knowled of the presence of an 'Hazardous
Material located in, on, under, upon or affectin the Land in violation of an
Environmental Law (ii) no notice has been received b or on behalf of Welter from,
an.d. Welter has no kri.owled that notice has been. g iven to an predecessor in
interest of the Land, b an g overnmental, entit or an person or entit claimin
an violation, of or re compliance witti. an Environmental Law for an
upon. or affectin the Land- and (Iii) Welter
environmental dama . in. on., under,
will not permit itself or an third part to use,, g enerate, handle, store or dispose of
an Hazardous Material in, on, under, upon, or affectin the Land. in violation of
an Environmental Law.
b. Without limitin para 20 above, Welter and Town. shall each
indemnif defend and. hold the other harmless from and a g ainst all. Losses arisin
100040412.DOC 11 12/11/2014
T'OWN OF M-AR ANAIWEIA"ER LEASE PA. GE 8
c. If an provision of this A is invalid or unenforceable with respect to
an Part the remainder of this A 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 A shall be valid and enforceable to the
fullest extent permitted b
d. An notice or demand re to be g iven under this A shall be
I I I
made b certlf*ed or re mail, return receipt re or reliable overni
courier to the address of the respective parties set forth below:
Welten
c/o Bill Welter
2341 S Calle Mesa del Oso
Tucson, Arizona 85748
Town:
Town of Marana
11.555 W. Civic Center Drive
Martina, Arizona 85653
Attn.- Technolo Services Director
With. a cop to
Marana Town Attorne
11-555 W. Civic Center Drive.
Marana, Arizona 8,56,53
Welter or Town. ma from time to time desi an other address for this
purpose b written notice -to the other Part Al - under this A
shall be deemed received upon actual receipt.
e. This A shall be g overned b the laws of the State of Arizona.
f. This A shall- be recorded b and at the expense of the Town in the
office of the Pima Count Recorder.
g . If the Land is encumbered b a mort or deed of -trust, Welter a to
obtain and, deliver to Town an executed and acknowled non-disturbance and,
attornment instrument for each such mort or deed. of trust in a recordable form
reasonabl acceptable to both parties.
h. Welter a to full cooperate, includin executin necessar
documentation-, with Town to obtain information. and documentation clearin an
f00040412DOC /1 1211 /2or4
TOWN 01� MARANA METTER LEASE' PAGE 10
from ( 1 ) an breach of an representation or warrant made in this para 26 b
such Part and/or (ii) environmental conditions or noncompliance with. an
Environmental Law ( as defined below that result, in the case of Town, from
operations in or around the Land b Town or Town's a emplo or
contractors,, and in the case of Welter, from. the ownership or control of,,, or
operations in or around/ the Land b Welter or Welter's predecessors-in-interest,
and their respective a emplo contractors,, owners, g uests or other parties.
The duties described in this para 26 shall appl as of the Effective Date of this
A and survive termination of this A
Co "'Hazard.ous Material-'-' means an solid., g aseous or li wastes ( includin g
hazardous wastes), re substances, pollutants or contaminants or terms of
similar import, as such terms are defined in an Environmental Law, and shall
include, without fimitatiori, an petroleum or petroleum products or b
flammable explosives, radioactive materials, asbestos in an form, pol
biphen and an other substance or material which constitutes a threat to health,
safet propert or the environment or which. has been or is in the future
determined b an g overnmental entit to be prohibited, limited or re 'b
an Environmental Law.
d. "Environmental Law" means an and all federal, state or local laws, rules,
re codes, ordinances, or b and an- j udicial or administrative
interpretations thereof-, includin orders, decrees, j ud g ments, rulin directives or
notices of violatiori, that create duties, obli or liabilities with respect to: (i)
human, health; or ( ii ) environmental pollution, impairment or disruption, includin
without limitation, laws g overnin g the existence, use,, stora treatment, dischar
release, containment,, transportation, g eneration, manufacture, refinement,
handlin production., disposal, or mana of an Hazardous Material, or
otherwise re or providin for the protection of the environment.
27. Mlscellaneotts.
a. This A constitutes the entire a and understandin between,
the Parties, and supersedes all offers, ne and other a concernin
the sub matter of this A An amendment to this A must be
in writin and executed b both Parties.
K Both. Parties represent and- warrant that their use of the Land. and their
personal propert located. on. it is in compliance with. all. applicable, valid and
enforceable statutes, laws/ ordinances and re of art competent
g overnment authorit
J00040412DOC /) 1.211-1/2014
7"01AN OF MARANA WEIATR LEASE PA GFE 9
IN WITNESS WHEREOF I as of the date of the
. the Parties have executed th A
last si below.
"Town":
THE TOWN OF MAFANA,
an Arizon unic' al corporation
Ed Honel
Ma
15
Date
ATTEST:
0/.
cel r nson, Town Clerk
I
y
APPROVED AS TO FORM:
F Town
rne
"Welter":
THE ESTATE OF IRENE WELTER, DECEASED,
BY AND THROUGH HER PERSONAL
REPRESENTATIVE,, BILL WELTER
Bill Welter
Personal Representative
ZyT �� /mil
Date
(OW40412DOC /1 12/11/2014
TowN OF MARANAIWELTER LEASE PAGE 12
STATE OF ARIZONA )
ss..
COUNTY OF PIMA )
The foregoing instrument was acknowledged before me this day of
201 by Bill Welter, as Personal Representative of the Estate of Irene
ester, deceased,
,. ►, Suzanne Sutherland
Seal y� V 6 Notary Public
.: ' ��
�•s Pima County, Arizona
• '., My Comm. Expires 09 -1 - 18 Notary public
100040412.DOC /) 12/11/2014
T OWN OF MA RANA I W ELTER LEASE PAGE 13
Beacon Hill Communications Site Sublease Agreement
between
Town of Marana and Simply Bits, LLC
THIS SUBLEASE AGREEMENT (this " "Sublease ") is entered Into by and between the
TOWN OF MARANA, an Arizona municipal corporation ("Town"") and SIMPLY BITS, LLQ
an Arizona limited liability company (" "Simply Bits "). The Town and Simply Bits are
sometimes referred to collectively as the Parties, any one of which is sometimes
individually referred to as a Party.
RECITALS
A. In 2005, the Town entered into a lease with the Estate of Irene Welter,
Deceased, by and through her Personal Representative, Bill Welter ("Welter""), for a
communications site located on Beacon Hill. The "Beacon hill Communications Site
Lease and Settlement Agreement" between the Town and Welter was recorded in the
Pima County Recorder's office on January 14, 2005, at Docket 12469, Page 3461 (the
"'Original Welter Lease"').
B. Following execution of the original Welter Lease, the Town refurbished and
rebuilt an equipment shelter on the site (the " "Rebuilt Building ").
C. In 2009, the Town and Welter entered into the "First Amendment to Beacon
Hill Communications Site Lease and Settlement Agreement," recorded in the Pima
County Recorder's office on December 30, 2010 at Docket 13966, Page 415 (the "First
Amendment to Welter Lease "). The First Amendment to Welter Lease authorized the
Town to sublease the premises subject to the original Welter Lease to Simply Bits for
the purposes of allowing equipment previously installed on the premises by Simply Bits
to remain, on the premises.
D. Also in 2009, the Town and Simply Bits entered into the "Beacon Hill
Telecommunications Site Sublease Agreement Between Simply Bits and Town of
Marana" (the "original Simply Bits Sublease ") in which the Town subleased the
premises to Simply Bits for the purpose of allowing Simply Bits to operate, maintain
and repair its existing equipment on the premises.
E. In. 2011, the Town and Welter entered into the " "Second Amendment to Beacon
Dill Communications Site Lease" recorded in the Pima County Recorder's office on
February 16, 2011 at Sequence Number 20110470647 (the "Second Amendment to
( 00040432, DOC 12 )
To wN CSI ~ MAIAANAISimpi.Y Bi7'S S LIB LEA SE 12/11/14
Welter Lease ") to allow Simply Bits to place additional equipment on the premises and
to modify Simply Bits' monthly rent for the equipment on the premises.
F. Also in 2011, the Town and Simply Bits entered into the "First Amendment to
Beacon Hill Telecommunications Site Sublease Agreement Between Simply Bits and
Town of Marana" (the "First Amendment to Sublease Agreement "} to allow Simply Bits
to place additional equipment on the premises and to modify Simply Bits' monthly rent
for the equipment on the premises.
G. The terms of the original Welter Lease and the original Simply Bits Sublease
both end on December 31, 2014.
I I. The Town and Welter have entered into a new lease agreement for the site
pursuant to the "Beacon Hill Communications Site Lease Agreement" a true and correct
copy of which is attached as Exhibit A to this Sublease and incorporated here by this
reference (the "Welter Lease"").
I. The property that is the subject of the Welter Lease is a parcel of land (the
"Land ") and a communications tower on the Land (the "Tower "). 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. Collectively, the Land and the Tower are sometimes referred to as the
"Property."
J. The ""Premises" are described in the Welter Lease as follows: a) the
approximately 600 square feet of the Land where the Rebuilt Building is located and a
reasonable area immediately surrounding the Rebuilt Building to accommodate the
Town Facilities, (b) antenna space on the Tower located on the Land, and [c] all access
and utility easements necessary or desirable for the use of the Rebuilt Building and the
Tower for the installation and maintenance of the Town communication equipment.
The Premises leased to the Town by Welter do not include the Rebuilt Building; Welter
and the Town expressly agree and acknowledge that the Rebuilt Building is a part of
the Town Facilities.
K. The Town and Simply Bits now desire to enter into this Sublease to allow
Simply Bits to continue to sublease the Premises for purposes of allowing the Simply
Bits equipment allowed on the Premises and Rebuilt Building pursuant to the First
Amendment to Sublease Agreement to remain on the Premises and Rebuilt Building.
AGREEMENT
NOW, THEREFORE, based on the foregoing Recitals, which are incorporated here
by this reference, the Parties agree as follows:
1. Sublease and Use. The "Premises" that are the subject of this Sublease consist of
both the Premises, as described in Recital J above, and the Rebuilt Building, as
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'TOWN OF MARf1NAISIMPL.Y Bi7 SUBLEASE -2- 1212312014 9:48 AM Jr /FC
described in Recital B above. Marana hereby subleases the Premises to Simply Bits for
the purpose of operating, maintaining and repairing the Simply Bits equipment allowed
on the Premises and Rebuilt Building pursuant to the First Amendment to Sublease
Agreement (the "Simply Bits Equipment " ). Simply Bits shall be permitted to maintain
no more than a total of three dishes and a total of up to nine square feet of panel or
sector antennas at four attachment points on the Premises. Any increase in the size or
number of Simply Bits antennas or dishes on the Premises requires Towns and welter's
prior written approval.
2. Incorporation and Notice of Termination or Modification of Underlying Agreements. To
the extent of the rights and obligations set forth in this Sublease, Simply Bits shall
comply with and be bound by all of the provisions of the welter Lease. If for any reason
the welter Lease is terminated or modified in a way that affects the rights of Simply Bits
under this Sublease, Marana shall notify Simply Bits of the termination or modification
as soon as practicable (and in any event not more than ten business days) after becoming
aware of the termination or modification.
3. Terra and Termination. The term of this Sublease shall begin on January 1, 2015,
(the "Effective Date ") and shall thereafter be concurrent with the term of the welter
Lease, as it may be extended from time to time. Simply Bits may terminate this Sublease
at any time if any of the following occurs: (a) Simply Bits is unable to obtain or ma int ain
any license, permit or other approval necessary for the operation of the Simply Bits
Equipment; or (b) if Simply Bits is unable to occupy and utilize the Premises due to an
action of the FCC, including , without limitation, a tack back of channels or change in
frequencies; or (c) if any environmental report for the Premises reveals the presence of
any Hazardous Material, as defined in paragraph 13 below, after the Effective Date.
Anything in the foregoing notwithstanding, Simply Bits may terminate this Sublease for
its convenience and without cause upon six months' notice to Town.
4. Sublease Rent.
a. within 15 business days f ollowing the Effective Date and on the first day of
each month thereafter for so long as this Sublease remains in effect, Simply Bits
shall pay to the Town as sublease rent $450.20 per month (the "Sublease Rent ").
b. Each January 1 beginning on January 1 , 2016, the previous year's Sublease
Dent shall be adjusted upward by 3 %.
5. Maintenance, Operation and Repair of Equipment.
a. Town shall provide to Simpl Bits the existing space used by the Simply Bits
Equipment on the Premises, and access to the Premises in substantially the same
manner as the Simply Bits currently has space and access, and all existing wiring,
cabling and electrical fees to operate the Simply Bits Equipment. Simply Bits shall
be permitted to enter the Premises as Simply Bits reasonably determines is
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reasonably necessary to operate, maintain and repair the Simply Bits Equipment
and to provide any contracted services to Simply Bits customers.
b. Prior to replacing or modifying Simply Bits Equipment or improvements
located on the Premises as of the Effective Date, Simply Bits shall give Town and
Welter a reasonably detailed drawing or written description thereof and shall not
proceed without the prior written approval of Town, acting through its Technology
Services Director, and welter.
c. All operations, maintenance, repairs and replacement of the Simply Bits
Equipment shall be performed at Simply Bits' sole cost and expense, in a good and
workmanlike manner, only after obtaining any permits required by law, in
compliance with all applicable laws and in a manner designed to minimize any
interference with the operation of other equipment operated by Town and others on
the Premises and in the surrounding area of Beacon Hill owned by Welter. Simply
Bits shall, at its sole cost and expense repair or refinish any surface of the Premises
that is damaged by or during the installation or operation of the Simply Bits
Equipment and caused by Simply Bits or any of its agents, representatives,
employees, contractors, subcontractors, or invitees. If Simply Bits fails to repair or
refinish any such damage, Town may, in Its sole discretion, repair or refinish such
damage and Simply Bits shall reimburse Town of all reasonable costs and expenses
incurred in such repair or refinishing, provided, however, that Town shall give
Simply Bits ten days' written notice before taking any action to repair or refinish
damage.
d. 'Upon the expiration or termination of this Sublease, Simply Bits shall remove
all of the Simply Bits Equipment and other personal property from the Premises in
a manner consistent with the terms of the welter Lease.
e. Simply Bits, through its designated and approved employees and contractors,
shall be solely responsible for the maintenance and care of the Simply Bits
Equipment and connecting equipment and shall maintain the same in a clean,
sanitary and safe condition and in good repair and free of any defects at all times
during this Sublease.
f. Simply Bits shall label and identify all Simply Bits Equipment with Simply
Bits' name and telephone number.
6. Access. Town acknowledges that pursuant to the welter Lease, Simply Bits and its
employees, agents and contractors shall have access to the Premises without notice to
Town or welter 24 hours a day, seven days a week, at no charge.
7. Authorized Personnel List. For security purposes, Simply Bits shall provide Town
with a list of the names of all personnel who are authorized to enter onto the Premises
pursuant to this Sublease. The list shall be updated whenever a change of personnel
00040432. DOC 12 )
TowN OF .MARANAISIMPT Y BiTs SUBLEASE -4- 12/23/2014 9:48 AM JF /1`C
occurs. Town is authorized to block entry to any personnel whose name is not on the
list. This paragraph shall be interpreted as a right, but not an obligation, of Simply Bits
to police or restrict entry onto the Premises.
S. Insurance.
a. During the term of this Sublease, including any extensions, Simply Bits shall
maintain, or cause to be maintained, in full force and effect and at its sole cost and
expense, the following types and limits of insurance. The coverage amounts set
forth below may be met by a combination of underlying and umbrella policies so
long as in combination the limits equal or exceed those stated.
i. Workers' Compensation insurance meeting applicable statutory
requirements and employer's liability insurance with minimum limits of
$100,000 for each accident.
ii. Comprehensive commercial general liability insurance with minimum
limits of $1,000,000 as the combined single limit for each occurrence of bodily
injury, personal injury and property damage and $2,000,000 aggregate.
iii. Automobile liability insurance covering all owned, hired, and non -owned
vehicles in use by Simply Bits, its employees and agents, with personal protection
insurance and property protection insurance to comply with the provisions of
state law with minimum limits of $1,000,000 as the combined single limit for each
occurrence for bodily injury and property damage.
iv. A property insurance policy insuring all of the Simply Bits Equipment.
All proceeds of such insurance shall be used to repair, replace, or remove the
Simply Bits Equipment in a manner consistent with the terms of this Sublease.
b. The commercial general liability policy required by paragraph 8(a)(ii) above
shall name the Town and its agents as additional insureds.
c. Current certificates of insurance and additional insured endorsements for
each insurance policy required to be obtained and maintained by Simply Bits in
compliance with this paragraph S shall be filed and maintained with the Town
within. 30 days of execution of this Sublease and within ten days of any renewal or
change in such policies. I.f the Town is not provided current certificates and
additional insured endorsements and must request an updated certificate or
endorsement, Simply Bits shall pay an administrative fee of $25.00 for each
certificate or endorsement so requested, provided, however, that the administrative
fee shall be waived if Simply Bits provides evidence satisfactory to the Town
Attorney that it requested the required certificates and additional insured
endorsements in writing from its insurance provider within 15 days of execution of
this Sublease and , Within five days of any renewal or change in such policies.
f 00040432.DOC 12)
TOWN OF MAIAANAISIMPLY BiTs SUBLEASE -5- 1212312014 9:48 AM iFlliC
d. The insurance afforded Simply Bits shall be primary insurance and any
insurance carried by the Town, its agents, officials or employees shall be excess and
not contributory insurance to that provided by Simply Bits. Coverage provided by
Simply Bits shall be primary insurance with respect to all other available sources.
e. By requiring insurance herein, the Town does not represent that coverage
and limits will be adequate to protect Simply Bits. Failure to demand evidence of
compliance with the insurance requirements set .forth in this Sublease or failure to
identify any insurance deficiency shall not relieve Simply Bits from, nor be
construed or deemed a waiver of, Simply Bits' obligation to maintain the required
insurance at all times during the term of the Sublease.
f. Simply Bits shall immediately advise the Town of any claim or litigation that
may result in liability to the Town.
g. Simply Bits shall give the Town at least 30 calendar days' written notice prior
to a planned cancellation or reduction of any coverage required by this paragraph S.
Simply Bits shall give the Town immediate notice of any other cancellation or
reduction of any coverage required by this paragraph S. Cancellation or reduction
of any coverage required by this paragraph S is grounds for termination of this
Sublease by the Town.
h. All insurance shall be affected under valid and enforceable policies, insured
by insurers acceptable to the Town.
i. Simply Bits 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 Simply Bits Equipment or any other
property thereon caused b , or that result from., risks insured against under any
p y y
insurance policies carried by the Parties and in force at the time of any such
damage. Simply Bits 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 Simply Bits 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 this paragraph S.
J
Simply 1 Bits shall require that each and every contractor and subcontractor
who performs work on the Premises carry, in full force and effect, Workers'
Compensation, comprehensive commercial general liability and automobile liability
insurance coverage of the type which Simply Bits is required to obtain under the
terms of this paragraph S with appropriate limits of insurance.
9. Indeninifi Marana and Simply Bits each shall indemnify the other against
and hold the other harmless from any and all costs (including reasonable attorneys'
( 00040432. DOC 12 )
TC)Vti N OF .,MARANAISIMPLY Bn's SUBLEASE -6- 12/23/2014 9:48 AM JF /FC
fees) and claims of liability or loss which arises out of the use and/or occupancy of the
Premises by the indemnifying party. This indemnity does not apply to any claims
arising from the sole negligence or intentional misconduct of the indemnified party.
The indemnity obligations under this Paragraph will survive termination of this
Sublease.
10. Default. If either Party is in default under this Sublease for a period of (a) ten
days following receipt of notice from the non - defaulting Party with respect to a default
that may be cured solely by the payment of money, or (b) 30 days following receipt of
notice from the non - defaulting Party with respect to a default that may not be cured
solely by the payment of money, then, in either event, the non - defaulting Party may
pursue any remedies available to it against the defaulting Party under applicable law,
including, but not limited to, the right to terminate this Sublease. If the non - monetary
default may not reasonably be cured within a 30 -day period, this Sublease may not be
terminated if the defaulting Party commences action to cure the default within. such
30 --day period and proceeds with due diligence to fully cure the default.
11. Assignment. Simply Bits shall not assign, sublet or transfer this Sublease without
prior written approval of Town and Welter; provided, however, that such approval
shall not be required if such assignment, sublet or transfer: (i) is as a. result or part of a
merger, consolidation, other entity level transaction, or a transaction involving the sale
of substantially all of Simply Bits' assets; (ii) has a good faith business purpose which is
not designed principally to avoid the provisions of this paragraph, provided, however,
that such assignee, sublessee or transferee has the expertise and financial wherewithal
to fulfill Simply Bits' obligations under this Sublease; or (ill) is to an entity that controls,
is under common control with or is controlled by Simply Bits.
12. Subordination. This Sublease is subject to any bona fide mortgages, ground leases
and all amendments and modifications thereof now or hereafter.
13. Hazardous Substances. Simply Bits agrees that it will not use, generate, store or
dispose of any Hazardous Material (defined below) on, under, about or within the
Premises in violation of any law or regulation. As used in this paragraph, "Hazardous
Material" shall mean hazardous or radioactive material, polychlorinated biphenyls,
friable asbestos or other hazardous or medical waste substances as defined by the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, or by any other federal, state or local law, statute, rule, regulation or order
concerning environmental matters. This paragraph shall survive the termination of this
Sublease.
14. Taxes. During the tern. of this Sublease and any extension hereof, Simply Bits
shall be responsible for the declaration and payment of any applicable taxes or
assessments against the personal property owned by Simply Bits located on the
Premises. Simply Bits agrees, upon request of the Town or Welter, to provide the Town
f OD040432.DOC 12)
'.TOWN OF MARANAISIMPL Y BI rs SUBLEASE -7- 12/23/2014 9:48 AM JF /lyC
with timely evidence satisfactory to the Town that all taxes due and payable for Simply
Bits' property have been paid.
15..Recording. This Sublease shall not be recorded. However, the Town agrees to
execute and deliver to Simply Bits a Memorandum of Sublease in the form attached to
and incorporated by this reference in this Sublease as Exhibit B and acknowledges
Simply Bits' right at Simply Bits' sole option and cost to record the Memorandum of
Sublease in the office of the Pima County Recorder.
16. Conflict of Interest. This Sublease is subject to A.R.S. §38 --511, which provides for
cancellation in certain instances involving conflicts of interest.
17. Excusable Delay. If either Party is unable due to causes beyond its reasonable
control to carry out its obligations under this Sublease in whole or in part and if such
Party gives written notice and full details of an Excusable Delay (defined below)
(including, without limitation, a force nzajeure event) to the other as soon as practicable
after the occurrence of the event, then the obligations of the affected Party will be
suspended to the extent reasonably required as a result of such event. "Excusable
Delay" shall mean an event that is not within the reasonable control of the affected
Party, including, without limitation, war, riots, civil insurrection or acts of a common
enemy, fire, flood, strikes or other labor difficulty, acts of civil or military authority,
including government laws, orders, actions, inactions or regulations, embargoes.
18. Coordination. The Parties shall coordinate with one another to insure that neither
interferes with the other's frequency operations.
19. Miscellaneous
a. The Town covenants that at all tunes during the term of this Sublease, the
Town shall not disturb Simply Bits' quiet enjoyment of its rights under this
Sublease so long as Simply Bits is not in default.
b. In the event of any litigation between the Parties, the prevailing Party shall
be entitled to reasonable attorneys' fees.
c. This Sublease may not be modified, nor its provisions waived., except by a
writing signed by each of the Parties hereto.
d. Any notice, correspondence, demand or other communication, which is
required or permitted by this Sublease 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:
{ 0 004 043 2. DOC 12 )
MOWN OF MARANAISimpLY Brr's SUBLEASE -8- 1212312014 9:48 AM JFII,C
Simply Bits:
Simply Bits, LLC
5225 North Sabino Canyon Road
Tucson, Arizona 85750
Attn: Bradley Feder
Town:
Town of Marana
1.1555 W. Civic Center Drive
Marana, Arizona 85653
Attn: Technology Services Director
With a copy to:
Marana Town Attorney
11555 W. Civic Center Drive.
Marana, Arizona 85653
In addition, a copy of any notice, correspondence, demand or other
communication required or permitted by this Sublease shall be made by
certified or registered mail, return receipt requested, or reliable overnight
courier to Bill welter, 2341 South Calle Mesa del oso, Tucson, Arizona 85748.
Any notice shall be deemed given on the date delivery is receipted or refused.
e. This Sublease shall be governed by the laws of the State of Arizona. The
parties agree that Pima County, Arizona shall be the venue for any litigation
regarding this Sublease.
f. If any term or provision of this Sublease, or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Sublease, or the application of such term or provision to persons,
entities or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of this
Sublease shall be valid and enforceable.
g. This Sublease constitutes the entire agreement and understanding between
the Parties, and supersedes all offers, negotiations and other agreements concerning
the subject natter of this Sublease.
h. The Town acknowledges that in the event of a breach of this Sublease by the
Town, Simply 1 Bits shall have the right to obtain specific performance or other
g
injunctive relief in addition to monetary damages and any other remedies
permitted by law.
i. The individuals executing this Sublease on behalf of the Town and Simply
Bits each represent that they are authorized to execute this Sublease on behalf of the
Town or Simply Bits, as the case may be, and upon execution hereof this Sublease
shall be binding upon the Town or Simply Bits, as the case may be.
f 00040432. DOC 12 )
TowN OF MARANAISIMPLY Bzri "s SUBLEASE -9- 12/23/2014 9.48 AM JF /1'C
j. Either Party shall, within ten days after request by the other, provide an
estoppel letter as to such matters as are reasonably requested.
k. This Sublease is an agreement running with the land with respect to the
Premises and, upon any sale or other transfer of the Town's leasehold interest in the
Premises, the Town shall assign this S ublease to the transferee and the transferee
shall assume the obligations of the Town under this Sublease 'whereupon the Town
shall have no further obligations under this Sublease from and after the date
thereof.
1. The Town and Simply Bits ac that this docum shall not be
construed in favor of or against the drafter by virtue of said Party being the drafter.
[SIGNATURE PAGE FOLLOWS]
{00040432.DOC 12�
TO WN OF MA RANA /S IMPI..Y B ITS S UBLEASE - 1.0- 12/23/2014 9:48 AM JFIFC
IN WITNESS WHEREOF, the Parties have executed this Sublease as of the date of the
last si below.
"Town":
THE TOWN OF MARANA,
an Arizona municipal corporation
Ed Hon a
Ma
Date
"Simpl Bits":
SIMPLY BITS, LLC, an Arizona limited
liabilit compan
Bradle H. Feder
Member
Date
ATTEST:
SO- %OPT
cel Town Clerk
APPROVED AS TO FORM:
nk C sid- Tow Attorne
STATE OF ARIZONA
) ss.:
COUNTY OF PIMA
The fore instrument was acknowled before me this da of
20 b Bradle H. Feder, Member of SIMPLY BITS, LLC, an Arizona
11.w
limited liabilit compan on behalf of the compan
Seal
Notar public
JUDITH H. SWEETS
NOTA pU13UC - ARIZONA
PIMA COUNTY
4 0 MY COmmlsWon Fj ores
June 25, 2017
( 00040432. DOC 12 }
TOWN OF MARANAISimpi.y Baas SUBLEASE
- 11 - 12123/2014 9:48 AM JF/FC