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HomeMy WebLinkAbout2006/09/19 Item 9 COUNCIL AGENDA STATEMENT '1 Item ' Meeting Date 9/19/06 ITEM TITLE: Resolution Approving Agreement between Palomar Communications, Inc. and City of Chula Vista for Radio Repeater and Antenna Site Lease SUBMITTED BY: Director of Public Works Operations ~hr City Manager i (4/Sths Vote: Yes_ No.1D REVIEWED BY: This resolution would approve a lease agreement for space on a communications tower located on Otay Mountain for Chula Vista Transit's (CVT) radio repeater and antenna. Since 1992, CVT has been leasing a site on Otay Mountain for its radio transmitting equipment. RECOMMENDATION: That Council approve a Resolution approving an Agreement between Palomar Communications, Inc. and City ofChula Vista for Radio Repeater and Antenna Site Lease for the period September 1, 2006 - August 31, 2009 (Three-Year Lease) with annual increases based on the Wholesale Price Index published by the U.S. Department of Labor. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: In 1992, the City ofChula Vista's Transit Division acquired its own radio transmitting equipment to support its transit operations. The radio system is vital to the operations of the transit system. It links the bus operator to dispatch during emergencies, mechanical breakdowns, accidents and on going customer service. The radio equipment, repeater and antenna, has been located on Otay Mountain under a lease with Palomar Communications, Inc. for the last three years. The table below estimates the cost for the contract period using the San Diego area average inflation rate of 3.72%. Palomar Communications did not increase their rate of $250.00 over the three years of their previous contract. The new rate of$275.00 is 10% above the previous rate, but within the cumulative inflation rate for the last three years. Palomar Communications, Inc. Fiscal Year Monthlv Rate Annualized Rate FY07 $275.00 $3,300.00 FY08 $285.00 $3,420.00 FY09 $295.00 $3,540.00 Estimated Three-vear Cost $10,260.00 9-1 Page 2, Item ~ Meeting Date 9/19/06 DECISION MAKER CONFLICTS: No Property within 500 feet Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property which is the subject of this action. FISCAL IMPACT: The radio site lease totals $10,260 over the three-year period. This cost is contained in the Transit operating budget, which is funded by MTS Consolidated TDA Article 4.0 funds. No General Fund contributions support this agreement. Attachments: Site Lease Agreement 9-2 RESOLUTION NO. 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT BETWEEN P ALOMAR COMMUNICATIONS, INe. AND CITY OF CHULA VISTA FOR RADIO REPEATER Al'ID ANTENNA SITE LEASE WHEREAS, in 1992, the City of Chula Vista's Transit Division acquired its own transmitting equipment to support its transit operations; and WHEREAS, the radio equipment, repeater, and antenna has been located on Otay Mountain under a lease with Palomar Communications, Inc. [Palomar] for the last three years; and WHEREAS, the table below estimates the cost for the contract period using the San Diego area average inflation rate of3.72 percent. Palomar did not increase their rate of$250.00 over the three years of their previous contract. The new rate of$275.00 is 10 percent above the previous rate, but within the cumulative inflation rate for the last three years. Palomar Communications Inc. Fiscal Year Monthlv Rate Annualized Rate 2007 $275.00 $3,300.00 2008 $285.00 $3,420.00 2009 $295.00 $3,540.00 Estimated Three-Year Cost $10,260.00 WHEREAS, staff recommends approval of an agreement between Palomar and the City for the Radio Repeater and Antenna Site Lease for the period of September 1,2006 through August 31, 2009, with annual increases based on the Wholesale Price Index published by the U.S. Department of Labor; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City ofChula Vista does hereby approve an agreement between Palomar Communications, Inc. and the City ofChula Vista for Radio Repeater and Antenna Site Lease. Presented by Approved as to fonn by Leah Browder Deputy Director of Engineering <r J/&~ J :\Attomey\RESO\AG REEMENTS\PaJomar Communications 2006.doc 9-3 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Ann Moore City Attorney q.~~ 1 . S. and Dated: q kilo y Site Lease Agreement between the City of Chula Vista and Palomar Communications, Inc. for the installation, maintenance, operation and removal of communications equipment 9-4 SITE LEASE AGREEMENT THIS LEASE, made this 1st day of September, 2006, between Palomar Communications Inc., a California corporation, having its principal office at 2230 Micro Place, Escondido, California, 92029 hereinafter referred to as Lessor, and City of Chula Vista hereinafter referred to as Lessee: 1. Lessor hereby grants permission to Lessee to install, maintain, operate and remove communications equipment ("Equipment") on and in Lessor's property, antenna site and/or equipment room, herein sometimes referred to as the "Premises", located at 1/4 mile S.W. of Doohouse Junction. Otav Mountain. CA specifically, one repeater on 453.225 MHz. transmit. 458.225 MHz. receive. 100 watts max power output. ~nd the associated TX Yaoi antenna to be placed at the cables and antennas specifically, one 450 MHz. 12 ft. level. 2. TERM AND TERMINATION - This Lease shall become effective upon installation of equipment or thirty (30) days from the afore mentioned date,which ever shall occur first, and shall continue in effect for a term of THREE year(s). This Lease may be terminated by either party upon thirty (30) days advance written notice. On termination of the Lease in accordance with any of its terms, Lessee shall immediately remove its antennas, wires, and appliances from Lessor's premises. 3. ATTACHMENTS TO PREMISES BY LESSEE - Lessee shall, at its own expense, maintain any Equipment on or attached to the Premises in a safe condition and in good repair, and in a manner reasonably suitable to Lessor so as not to conflict with the use of the premises by Lessor, or by any other company using the premises and so as not to interfere with the working use of facilities thereon or to be placed thereon. Lessee agrees to install equipment of types and frequencies which will not cause interference to Lessor or other existing Lessees of Lessor's property, antenna site and/or equipment room. In the event Lessee's equipment causes such interference, Lessee will take all steps necessary to correct and eliminate the interference. I f said interference cannot be eliminated within forty-eight (48) hours after receipt of written notice from Lessor to Lessee, Lessee shall seek regulatory authorization to temporarily disconnect the electric power and shut down Lessee's equipment (except for intermittent operation for the purpose of testing, after performing maintenance, repair, modification, replacement, or other action taken for the purpose of correcting such interference). If such interference is not corrected within thirty (30) days after receipt of said written notice, Lessee 9-5 agrees to seek regulatory authorization to establish alternative facilities and to remove its equipment from the premises. This Lease shall then terminate without further obligation by either party, except as may be specifically enumerated herein. 4. Lessor agrees that Lessee shall have free access to Lessor I s property, antenna site and/or equipment room for the purpose of installing, maintaining and operating Lessee's equipment, and Lessor further agrees to give Lessee free ingress and egress to the premises during the continuation of this Lease and any renewals thereof. Lessor shall furnish Lessee with necessary keys for the purpose of ingress and egress to the premises. It is agreed, however, that only authorized engineers, employees, contractors, sub-contractors, and agents of Lessee, FCC inspectors, or persons under their direct supervision, will be permitted to enter the premises. 5. COMPLIANCE WITH STATUTES AND REGULATIONS - Antennas, wires and appliances of Lessee shall be erected and maintained in accordance with the requirements and specifications of the safety codes of the State of California, or any amendments or revisions thereof, and in compliance with any rules or orders now in effect, or that hereafter may be issued by the Federal Communications Commission. 6. MAINTENANCE AND OPERATION OF PREMISES - Lessor reserves to itself, its successors, and assigns, the right to maintain the premises and to operate its facilities thereon in such manner as will best enable it to fulfill its own service requirements, but in accordance with the specifications herein mentioned. Lessor shall not be liable to Lessee for any interruption of service of Lessee or for interference with the operation of the equipment, wires and appliances of Lessee arising in any manner from use of the premises hereunder, unless due to negligence of Lessor, its employees, agents or invitees. 7. RENTAL OF PREMISES - Lessee shall pay to Lessor for the use of the premises described hereunder, a rental rate of Two Hundred Seventv Five Dollars .. H___ - pe-r month, payable in advance, commencing on the commencement date of the lease as provided for in Paragraph 2. 8. UTILITIES - Electrical power is to be supplied and paid for by: X Lessor or Lessee. 9. BUREAU OF LAND MANAGEMENT - All B.L.M. fees resulting from the installation and use of the Lessee's equipment at the Premises shall be paid by the Lessee within 30 days of being presented with the amount of such fees. Not applicable this lease. 10. INDEMNIFICATIONS AND INSURANCE - Lessee shall indemnify Lessor against any and all claims and demands for damages to property and injury or death to persons, including any payments made under any workmen's compensation law or any plan for 9-6 employee's disability and death benefits, which may arise out of or be caused by the installation, maintenance, presence, use or removal of Lessee's equipment, or by any act of Lessee on or in the vicinity of the premises described hereunder. Lessor shall indemnify Lessee and hold Lessee harmless from and against any and all claims, liabilities, losses and causes of action, of whatever kind or nature, which are suffered by or asserted against Lessee by any person, and which arise out of, or in connection with, or are based upon, any acts or omissions of negligence on the part of Lessor, its employees, agents or invitees under this Lease. Lessee shall carry adequate insurance to protect the parties hereto against any and all claims, demands, actions, j udgrnents, costs, expenses and liabilities which may arise or result, directly or indirectly from Lessee's use of the Premises, except such liability as' shall arise out of the negligence of Lessor. The amounts of such insurance against liability due to damage ~o property shall be One Million Dollars ($1,000,000.); as to anyone occurrence and against liability due to injury or death of a person, One Million Dollars ($1,000,000.). Lessee shall also carry such insurance as will protect it from all claims under any workmen's compensation laws in effect that. may be applicable to Lessee. All insurance required hereunder shall remain in force for the entire life of this agreement. Upon request, Lessee shall, so long as this Lease shall remain in force, provide to Lessor current certificates of insurance evidencing that such insurance is in full force and effect. 11. RIGHTS TO EQUIPMENT - Any and all machinery, equipment and trade fixtures installed by Lessee shall remain personalty notwithstandipg the fact that it may be affixed or attached to the realty, and shall, during the term of this Lease or any extension or renewal thereof, belong to and be removable for Lessee. Lessee may,. at its election, remove said machinery, equipment and trade fixtures on or before the expiration of the term of this Lease provided that Lessee shall repair any damage caused by said removal wear and tear acceptable. Any of Lessee's property remaining on the Premises thirty (30) days after the expiration or termination of th~s Lease, which Lessor does not require Lessee to remove, shall b~~~me the prQperty of Lessor, free of any claim by Lessee or any person claiming through Lessee. 12. RENTAL RATE INCREASE - The rental rate of $275.00 per month shall be reviewed annually on the anniversary date on the beginning of the Term, and shall be adjusted as follows: The basis for completing the adjustment is the Wholesale Price Index, published by the United States Department of Labor, Bureau of Labor Statistics ("Index"), which is published for the date nearest the date of the Term ("Beginning Index"). If the Index published nearest the anniversary adjustment date ("Extension Index") has increased over the Beginning Index, the minimum monthly rent for the following year shall be set by multiplying the minimum monthly rent set forth in Paragraph 7 above by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index. If the Index is discontinued or revised during 9-7 this Term, such other government Index or computation with which it is replaced shall be used in order to obtain substantially the same result as would have been obtained if the Index had not been discontinued or revised. 13. DEFAULT - In the event Lessee fails to comply with any of the provisions of this Lease, including the specifications herein mentioned, or default in any of its obligations under this Lease, Lessor may, at its option, immediately terminate this Lease provided Lessor has given Lessee ten (10) days written notice of such default and Lessee has failed to cure the same within twenty (20) days after receipt of such notice provided, however, that where such default cannot reasonably be cured in such twenty (20) day period, if Lessee shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such default shall be extended for such period of time as may be necessary to complete such curing. Lessor hereby expressly waives its Landlord's lien and any and all rights granted by or under any present or future laws to levy or distrain for rent, in arrears, in advance, or both upon any or all antennas, machinery, equipment and other personal property of Lessee or any assignee or sub-tenant of Lessee on the Premises. . In addition, Lessor will not, except in any emergency, cure any alleged default by Lessee until after the expiration of twenty (20) days after Lessee's receipt of notice provided for herein and then only if Lessee has failed, during such period, to cure such default or perform such act. 14. ASSIGNMENT AND SUBLEASE - Lessee shall have the right to assign this Lease or to sublet without Lessor's consent, to any parent, subsidiary or affiliate of Lessee or to any person, firm or corporation which shall be controlled by, under the control of, or under common control with Lessee, or any corporation into which Lessee may be merged or consolidated or which purchases all or substantially all of the assets of Lessee. Lessor covenants and agrees that it will not unreasonably withhold or delay its consent to any other assignment of this Lease, or subletting of all or any part of the Premises, to any other person, firm or corporation. Notwi thstanding the foregoing, Lessee shall remain liable hereunder just as fully as if such assignment or subletting had not been made. 15. ATTORNEY'S FEES - In the event of any action filed in relation to this Lease, the prevailing party shall be entitled to recover from the other reasonable attorney's fees and other disbursements. 16. MANNER OF GIVING NOTICE - Any notice to be given under this Lease shall be mailed to the party to be notified at the address set forth herein, by registered or certified mail with postage prepaid, and shall be deemed given when so mailed. Any demand or notice to either party may be given to the other party by addressing the written notice to: 9-8 Lessor: Palomar Communications, Inc. 2230 Micro Place Escondido, CA 92029 Lessee: Citv of Chula Vista, Transit Div. 1800 Maxwell Rd. Chula Vista, CA 91911 17. Lessor covenants and agrees with Lessee that upon Lessee paying the rent and observing and performing all the terms, covenants and conditions, on Lessee's part to be observed and performed, Lessee may peacefully and quietly enjoy the Premises, subject nevertheless to the terms and conditions of this Lease. 18. ENTIRE AGREEMENT, SEVERABILITY - This Lease embodies the entire agreement between the parties. It may not be modified or terminated except as provided herein or by other written agreement between the parties. If any provision herein is invalid, it shall be considered deleted from this Lease, and shall not invalidate the remaining provisions of this Lease. 19. PARTIES' BOUND BY AGREEMENT- - Subject to the provisions hereof, this Lease shall extend to and bind the heirs, executors, administrators, successors and assigns of the parties hereto. 20. TOWER MARKING & LIGHTING REQUIREMENTS Lessor acknowledges that it, and not Lessee, shall be responsible for compliance with all tower or building marking and lighting requirements of the Federal Aviation Administration ("FAA") or the Federal Communications Commission ("FCC"). Lessor shall indemnify and hold Lessee harmless from any fines, or other liabilities caused by Lessor's failure to comply with such requirements. Further, should Lessee be cited by either the FCC or FAA because this site is not in compliance, and if Lessor does not cure the conditions of noncompliance within the time frame allowed by the citing agency, Lessee may terminate this License Agreement immediately upon notice to Lessor. IN WITNESS WHEREOF, the parties have executed this agreement on the day and the year first above written. Less~. alomar Communications, Inc. By: -':idr..z~ A ~ __ / Title: Dean R. Hovey, President Lessee: Citv of Chula Vista By: Title: City Attorney: 9-9