contractors; or COMPANY shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by the CITY; or a financial guarantee as directed by the CITY hereunder.
The parties to this AGREEMENT acknowledge and agree that at some point in the future COMPANY may determine that it is in COMPANY's best interests to move to a selfinsurance program for other insurance in addition to its currently self-insured property insurance listed in Sections I(A)(4) and I(B)(4) above. COMPANY shall timely and fully coordinate with CITY if COMPANY opts to move to a self-insurance program in the future and shall in that case allow CITY a reasonable opportunity and period of time: (1) to perform reasonable due diligence to confirm that the criteria set forth in Section D.1.e. set forth below would be met; and (2) to review such program in advance of making any such change. CITY reserves the right to require COMPANY to maintain the scope of insurance set forth in this EXHIBIT F, rather than move to a self-insurance program if, in the CITY'S determination, a proposed self-insurance program would not adequately meet the criteria set forth in Section D.1.e. herein below.
D. Other Insurance Provisions.
The policies are to contain, or be endorsed to contain, the following provisions:
1. Commercial General Liability and Automobile Liability Coverage(s) a. The City of Morgan Hill, its officers, employees, agents, and contractors are to be covered and endorsed as additional insured(s) as respects: Liability arising out of activities performed by or on behalf of, COMPANY; products and completed operations of COMPANY; premises owned, leased or used by COMPANY; and automobiles owned, leased, hired or borrowed by COMPANY. Additional insured status shall: (i) be limited to bodily injury, property damage or personal and advertising injury caused, in whole or in part, by COMPANY, its employees, agents or independent contractors; and (ii) not extend to claims for punitive or exemplary damages arising out of the acts or omissions of CITY, its officers, employees, agents or contractors or where such coverage is prohibited by law, or to claims arising out of the sole negligence of CITY, its employees, agents, or independent contractors. The coverage shall contain no other special limitations on the scope of protection afforded to CITY, its officers, employees, agents and contractors. The Commercial General Liability shall be endorsed using ISO endorsement form CG 20 10 or CG 20 26 (or equivalent) for ongoing operations and CG 20 37 (or equivalent) for completed operations.
b. COMPANY's required insurance coverage shall allow and be endorsed primary insurance as respects CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by CITY, its officers, employees, agents or contractors shall be excess of COMPANY's insurance and shall not contribute with it.
c. Any failure to comply with reporting provisions of the policies by COMPANY shall not affect coverage provided CITY, its officers, employees, agents, or contractors.
d. Coverage shall state that COMPANY's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
e. As provided for in Section C hereinabove, if COMPANY moves to a self-insurance program in the manner described in Section C hereinabove, and includes CITY as an additional insured, COMPANY shall: (i) maintain sufficient capital reserves as approved annually by Ernst & Young or any successor auditing firm; (ii) comply with applicable laws, including the timely filing of required government documents; (iii) ensure that COMPANY or any parent company providing such insurance maintains a net worth of at least $500,000,000 throughout the term of this AGREEMENT; and (iv) use an independent third party administrator to manage all claims.
In the event that COMPANY elects, under and in the manner provided for in this EXHIBIT F, to self-insure its obligation to include CITY as an additional insured, the following provisions apply: CITY shall (i) promptly and no later than thirty (30) days after notice thereof provide COMPANY with written notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this Section and provide COMPANY with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like; (ii) not settle any such claim, demand, lawsuit, or the like without the prior written consent of COMPANY; and (iii) fully cooperate with COMPANY in the defense of the claim, demand, lawsuit, or the like.
2. All Coverage(s)
Each insurance policy required by this AGREEMENT shall provide and be endorsed with a waiver of subrogation in favor of the CITY, its officers, employees, agents, or contractors.
Each insurance policy required by this AGREEMENT shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30) days' prior written notice has been given to CITY. If a carrier will not provide the required notice, the COMPANY shall provide written notice to the CITY of a suspension, voidance, cancellation, or reduction in limits no later than ten (10) business days before such event.
D. Acceptability of Insurers.
Insurance is to be placed with insurers rated at least A-VII by AM Best.
E. Verification Of Coverage.
COMPANY shall furnish CITY with certificates of insurance and with endorsements affecting coverage required by this AGREEMENT. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf.
Proof of insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the Risk Manager:
///
CITY OF MORGAN HILL
Risk Manager
17575 Peak Avenue
Morgan Hill, California 95112-5509
F. Subcontractors.
COMPANY shall obtain separate certificates and endorsements for each subcontractor in accordance with the requirements herein.
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
INSTALLATION AND PROPERTY USE AGREEMENT BETWEEN THE CITY OF
MORGAN HILL AND
NEW CINGULAR WIRELESS PCS, LLC.
This INSTALLATION AND PROPERTY USE AGREEMENT (the
"AGREEMENT') is made and entered into by and between the CITY OF MORGAN HILL, a municipal corporation ("CITY"), and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, having a mailing address of 575 Morosgo Drive NE, Suite 13-F, West Tower, Atlanta, GA 303244 ("COMPANY"), upon and as of the latter of the signature dates of CITY and COMPANY set forth below on the signature page of the parties to this AGREEMENT ("EFFECTIVE DATE") for the specified purposes set forth herein.
RECI T ALS
WHEREAS, CITY is the owner of that certain real property located at 2275 Rolling Hills Drive, Morgan Hill, California, more particularly described on the "PROPERTY Description," attached hereto as Exhibit A and incorporated herein by this reference ("PROPERTY"); and
WHEREAS, COMPANY desires to construct, install, maintain and operate at no cost to CITY certain telecommunications facilities and appurtenant structures on PROPERTY owned by CITY to provide its services, which services are more particularly described in Exhibit B, attached hereto and incorporated herein, ("SERVICES") in and around CITY; and
WHEREAS, in order to provide SERVICES, COMPANY desires to obtain from CITY and CITY desires to grant to COMPANY the right to use certain portions of the PROPERTY, which portions are further described in Exhibit C (the "LICENSED AREA"), which is attached hereto and incorporated herein, for the purposes of installing, maintaining and operating a telecommunication facility and associated equipment to provide SERVICES, which telecommunication facility and associated equipment are more particularly described on the "ANTENNA FACILITY Description" attached hereto as Exhibit D and incorporated herein ("ANTENNA FACILITY"); and WHEREAS, CITY desires to have the SERVICES available in CITY in accordance with the terms and conditions contained in this AGREEMENT.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1 EXHIBIT 1
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
SECTION 1. RIGHT TO USE CITY PROPERTY.
A. Right to Use. CITY hereby authorizes COMPANY the right to (1) use the LICENSED AREA on an exclusive basis, for the purpose of installing, maintaining and operating the ANTENNA FACILITY to provide SERVICES and for no other purpose; and (2) use the LICENSED AREA including the right of COMPANY to install and operate transmission cables from the equipment shelters or cabinets to the antennas, electric lines from the main feed on the Property to the equipment shelters or cabinets and communication lines from the Property's main entry point to the equipment shelter or cabinet.
B. Access.
1. At all times throughout the term of this AGREEMENT, at no additional charge to COMPANY, and in accordance with the provision of Section 1 (B)(2), (3) & (4) below, COMPANY and its employees, agents, and subcontractors, will have pedestrian and vehicular access ("Access") to and over the PROPERTY, from an open and improved public road, to the LICENSED AREA, for the installation, maintenance and operation of the ANTENNA FACILITY and any utilities serving the LICENSED AREA between the hours of 6:00 a.m. and 7:00 p.m. Monday - Saturday. CITY agrees to provide to COMPANY such codes, keys and other instruments necessary for such Access at no additional cost to COMPANY.
Notwithstanding the foregoing, all such activities shall be performed in compliance with Section 5. A below including without limitation all applicable City of Morgan Hill laws and building codes including those regulating days of the week and hours of the day during which construction and repairs may be performed.
2. COMPANY will be given reasonable access to the LICENSED AREA between the hours of 6:00 a.m. and 7:00 p.m. to repair, maintain or remove the ANTENNA FACILITY, provided COMPANY provides CITY with at least one (1) day prior written notice of the times that COMPANY will need access to the LICENSED AREA and at least forty-eight (48) hours' actual prior oral notice to CITY of the times that COMPANY will need access to any other portion of the PROPERTY. The CITY's Public Works Director (hereinafter "PROPERTY MANAGER") shall be CITY's contact for these purposes, unless CITY otherwise indicates to COMPANY in writing.
3. If an emergency repair of the ANTENNA FACILITY is necessary, COMPANY shall be allowed reasonable access to the LICENSED AREA during additional hours, provided COMPANY provides CITY with at least one (1) hour prior oral notice of the times that COMPANY will need access to that portion of the LICENSED AREA. For purposes of providing the advance oral notice set forth in this Section, CITY shall provide COMPANY with the telephone number 2
Market: San Francisco, Sacramento (South Bay} ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
of the PROPERTY MANAGER, which telephone number shall permit contact with the PROPERTY MANAGER, or his/her designate, twenty-four (24) hours per day. For the purposes of this section, an emergency repair of the ANTENNA FACILITY is defined as a circumstance during which the ANTENNA FACILITY is not functioning.
4. COMPANY shall allow a representative of the CITY to observe any construction, installation, repair, maintenance or removal work performed at the LICENSED AREA or any other portion of the PROPERTY.
C. Relocation and Removal.
1. If CITY determines it is necessary to relocate all or a portion of the ANTENNA FACILITY, CITY will have the right, subject to the following provisions of this Section, and exercisable at any time after the INITIAL TERM, but exercisable only one (1) time during the term of this AGREEMENT, and only after providing COMPANY with not less than twelve (12) months' prior written notice, to relocate the ANTENNA FACILITY, or any part thereof, to an alternate location (the "Relocation Premises") on CITY's PROPERTY; provided, however, that: (i) one hundred percent (100%) of all reasonable costs and expenses associated with or arising out of such relocation (including costs associated with any required zoning approvals and other governmental approvals and costs for any tests, surveys, reports, and studies of the Relocation Premises) shall be paid by CITY by reimbursing COMPANY within thirty (30) days of CITY'S receipt of a written invoice from COMPANY; (ii) such relocation will be performed exclusively by COMPANY or its agents; (iii) such relocation will not unreasonably result in any inferruption of the communications service of COMPANY on CITY's PROPERTY; and (iv) such relocation will not impair, or in any manner alter, the quality of communications service provided by COMPANY on and from CITY's PROPERTY. CITY will exercise its relocation right by delivering written notice pursuant to the terms of this AGREEMENT to COMPANY. In the notice, CITY will identify the proposed Relocation Premises on CITY's PROPERTY to which COMPANY may relocate the ANTENNA FACILITY. CITY and COMPANY hereby agree that a survey (prepared at the sole cost and expense of CITY) of the Relocation Premises (including the access and utility easements) will supplement Exhibit A hereto and become a part hereof, and the Relocation Premises shall be considered the Premises for all purposes hereunder after said relocation.
2. If in COMPANY's reasonable judgment no suitable Relocation Premises can be found, CITY may not exercise its relocation right described in this Section and CITY may not relocate or cause the relocation of the ANTENNA FACILITY; provided, however, that if CITY is exercising its relocation right described in this Section in order for CITY to comply with then-currently applicable governmental laws, rules, statutes and regulations, and in COMPANY's reasonable judgment no suitable Relocation Premises can be found, COMPANY shall have the right to terminate this AGREEMENT upon written notice to CITY, without penalty or further obligation. 3
Market: San Francisco, Sacramento (South Bay). ________ _ Cell Stte Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
D. Title to the ANTENNA FACILITY.
Title to the ANTENNA FACILITY, subject to the terms of this AGREEMENT, shall be and remain with COMPANY while the ANTENNA FACILITY is installed and maintained at the PROPERTY. CITY waives any and all lien rights it may have, statutory or otherwise, concerning the ANTENNA FACILITY or any portion thereof.
E. Title to Improvements to the PROPERTY.
Notwithstanding Section 1.D above, title to the improvements to the PROPERTY, or LICENSED AREA required for approval for the placement of the ANTENNA FACILITY, including buildings or other structures placed thereon by the City, shall be and remain with CITY. Title to all equipment installed for purposes of operating and providing wireless communications services pursuant to this AGREEMENT shall be and remain with COMPANY.
Notwithstanding any of the foregoing, improvements installed at the PROPERTY by COMPANY for the provision of SERVICE shall be for the exclusive use of, and under the exclusive control of COMPANY, subject to the provisions in Section 1 G and Section 7 throughout the term of this AGREEMENT.
F. No Warranties of Suitability of PROPERTY.
It is COMPANY's election to install and maintain the ANTENNA FACILITY at the PROPERTY and COMPANY does so solely at its own risk. CITY makes no representations or warranties regarding the suitability, condition or fitness of the PROPERTY for the installation, maintenance or use of the ANTENNA FACILITY.
G. Right of CITY Access.
CITY reserves, and COMPANY agrees to, the right of CITY, its authorized officers, employees, agents or contractors, to enter into and access the LICENSED AREA and the PROPERTY at any time. CITY agrees to provide COMPANY with at least forty-eight (48) hours' prior oral notice of CITY's plan to access the LICENSED AREA. For purposes of providing the oral notice set forth in this Section, COMPANY shall provide PROPERTY MANAGER with a current telephone number of an appropriate COMPANY representative. Without limiting the foregoing, CITY and COMPANY agree that CITY has reserved its rights to and may: (1) inspect the PROPERTY, LICENSED AREA and ANTENNA FACILITY for COMPANY's compliance with the terms of this AGREEMENT; (2) make repairs, alterations or additions to the PROPERTY or LICENSED AREA or maintain or use the PROPERTY in any manner not prohibited by the terms of this AGREEMENT, all without a claim by COMPANY for any loss of occupation or use of, or any abatement of, the USE CHARGE for use of the LICENSED AREA.
4
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
SECTION 2.
A. Initial Term.
TERM.
The term of this AGREEMENT shall commence on the EFFECTIVE DATE set forth above, and shall continue for five (5) years ("INITIAL TERM"), expiring at 11 :59 p.m. on the fifth anniversary of said EFFECTIVE DATE ("EXPIRATION DATE"), unless earlier terminated as pursuant to the terms of this AGREEMENT.
B. Option to Extend.
This AGREEMENT will automatically renew for two (2) additional five (5) year terms beyond the INITIAL TERM described herein on the same terms, covenants and conditions that are contained in this AGREEMENT (each an "Extension Term") unless either party notifies the other in writing of its intention not to renew this AGREEMENT at least ninety (90) days prior to the expiration of the existing term and subject to CITY's and COMPANY's other termination rights set forth in this AGREEMENT.
CITY shall increase the USE CHARGE in the manner provided in Section 3B below.
SECTION 3. USE CHARGE.
A. Charge and Payment.
Commencing upon the date upon which COMPANY starts work to construct or install the ANTENNA FACILITY on the PROPERTY ("USE CHARGE COMMENCEMENT"), COMPANY shall pay CITY the sum of forty thousand dollars ($40,000) per year calculated in accordance with the CITY's Rate Schedule as shown in Exhibit E, which is subject to annual adjustment by CITY as provided below ("USE CHARGE"). The USE CHARGE shall be due and payable from COMPANY to CITY, and COMPANY shall pay such USE CHARGE, in full on the USE CHARGE COMMENCEMENT date and then on each anniversary of the USE CHARGE COMMENCEMENT date ("Anniversary Date") without offset, in advance. COMPANY shall make all payments to CITY at the following address:
City of Morgan Hill
Finance Department
17575 Peak Avenue
Morgan Hill, California 95037
Initial payment by COMPANY for adjustments made for addition of antennae, pursuant to Exhibit E shall be due and payable at the address set forth above on the USE CHARGE COMMENCEMENT date. If CITY approves placement of said additional antennae on the ANTENNA FACILITIES, payment shall be prorated to reflect the remainder of the year of the term ("Term Year"). CITY shall reimburse COMPANY for Adjustments reflecting removal of antenna(e) no later than sixty (60) days after CITY is 5
Market: San Francisco, Sacramento (South Bay}, ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
notified by COMPANY in writing of the completion of such removal. Adjustments to reflect removal of antenna(e) shall be prorated to reflect the portion of the Term Year remaining after CITY receives said written notice of such removal. Any partial Term Year or INITIAL TERM or Extension Term shall be prorated.
B. Adjustment of USE CHARGE.
1. Beginning in year two (2) of the INITIAL TERM, and each year thereafter, including throughout any Extension Term exercised, the annual USE CHARGE will increase by three and a half percent (3 ½%) over the USE CHARGE paid during the previous year. COMPANY may choose to pay for all five (5) years of the INITIAL TERM or an Extension Term in advance and in that case the USE CHARGE shall be the rate in effect for the first year of that particular term less a twenty percent (20%) discount. However, if COMPANY paid in advance for all five (5) years of the Initial Term or an Extension Term, then beginning in year one of any subsequent Extension Term exercised, the USE CHARGE will increase by three and a half percent (3 ½%) for each year of the previous Initial Term or Extension Term. (Therefore, if the previous Initial Term or Extension Term, whichever is applicable, was for five (5) years and COMPANY paid for the five (5) years in advance, the Use Charge for the first year of any subsequent Extension Term would increase by 3.5% x 5 = 17.5%.) C. Penalty for Delinquent Payment.
If COMPANY fails to pay to CITY within ten (10) days after the due date any USE CHARGE payment hereunder, then, thereafter, COMPANY shall owe and pay to CITY along with its delinquent USE CHARGE payment, and in addition to the unpaid USE CHARGE payment, an amount equal to five percent (5%) of the past due USE CHARGE amount, which late charge payment is mutually agreed to by CITY and COMPANY as an incentive for timely payment and in recognition of the additional costs to CITY to track and service delinquent payments.
SECTION 4. RIGHT TO USE APPLICABLE ONLY TO PROPERTY.
This AGREEMENT shall not be construed to permit construction, installation, maintenance or use of an antenna facility on any property other than the ANTENNA FACILITY on the LICENSED AREA of the PROPERTY.
SECTION 5. COMPLIANCE WITH APPLICABLE LAW AND APPROVALS.
A. Facility to be Constructed in Accordance with Law.
COMPANY shall construct, install, operate, maintain and remove the ANTENNA FACILITY in accordance with all applicable federal, state and local governmental laws, rules and regulations now in existence or as hereafter enacted or amended. Without limiting the foregoing, COMPANY shall obtain, maintain and fully comply with any and all permits or approvals required from CITY.
6
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
B. Utility User's Tax.
COMPANY acknowledges and agrees that CITY does not currently require users of communications services such as the SERVICES to pay to CITY a utility users' tax.
However, without limiting the other provisions of this SECTION, should the CITY ever institute such a tax, COMPANY agrees that COMPANY shall collect from the users of the SERVICES and remit to CITY said utility users' tax all in the manner described in, and in compliance with, the CITY's requirements.
C. Licensing and Authorization.
COMPANY represents and warrants for the benefit of CITY that COMPANY holds and maintains in good standing, or will hold and maintain in a timely fashion, all requisite licenses and other approvals under federal, state and local laws and regulations to undertake all of the actions and to provide the SERVICES set forth in this AGREEMENT and, more specifically and without limiting the foregoing, that COMPANY is licensed by the Federal Communications Commission ("FCC") to operate the ANTENNA FACILITIES and provide the SERVICES, and COMPANY agrees to provide documentation evidencing such licensing and authorization within thirty (30) days of receiving a request by CITY for such documentation, but in no event shall City make a request more than once annually. Notwithstanding any CITY request for such documentation, COMPANY shall maintain in full force and effect at all times during any term of this AGREEMENT all requisite licenses and approvals from the FCC, as well as any other applicable governmental entity, needed to operate the ANTENNA FACILITY and/or to provide the SERVICES and shall conduct any and all activities under this AGREEMENT in full and timely conformance with such FCC licenses and approvals.
SECTION 6. MAINTENANCE AND REPAIR.
A. COMPANY shall maintain and repair the ANTENNA FACILITY, at no cost to CITY (except as specifically provided otherwise in this AGREEMENT) and to CITY's reasonable satisfaction, any and all damage to the PROPERTY or the LICENSED AREA that may result from any operation, maintenance, relocation or removal of the ANTENNA FACILITY or COMPANY's exercise of any of the rights and privileges hereby granted, including, without limitation, damage to any walls, floors, ceilings, doors, roads, gates, water tanks and equipment, fences or electrical system in the PROPERTY or the LICENSED AREA. Upon removal of the ANTENNA FACILITY, or any portion thereof, or the termination of this AGREEMENT, COMPANY shall restore the affected areas of the PROPERTY to at least as good condition and repair as before COMPANY's use thereof, except for reasonable wear and tear and loss by casualty or other causes beyond COMPANY'S control excepted. Notwithstanding the foregoing, COMPANY will not be responsible for the replacement of any trees, shrubs or other vegetation, nor will COMPANY be required to remove from the LICENSED AREA or the PROPERTY any structural steel or any foundations to a depth of more than one (1) foot below grade or underground utilities. The provisions of this Section shall survive termination of this AGREEMENT.
7
Market: San Francisco, Sacramento (South Bay), ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
B. COMPANY agrees to and shall: (1) keep the ANTENNA FACILITY and the LICENSED AREA in a safe, neat, clean and orderly condition at all times; (2) not cause rubbish, garbage or debris to accumulate or remain on or around the ANTENNA FACILITY, LICENSED AREA or PROPERTY at any time; (3) not commit, suffer or allow any acts to be done at or around the ANTENNA FACILITY, LICENSED AREA or PROPERTY in violation of any law, regulation, permit or rule; and, (4) not use or allow the use of the ANTENNA FACILITY, LICENSED AREA or PROPERTY for any illegal or immoral purpose.
C. COMPANY shall install utility tape 12 inches below ground to mark cabling located outside the LICENSED AREA and identify the antenna with ownership markings.
D. Prior to any installation COMPANY shall submit plans and specifications to the CITY for approval of any proposed cable runs. In addition, the COMPANY must provide to CITY a set of as-builts after installation that shows the precise location of cable runs, as well as other details.
E. Should the COMPANY, in the CITY'S reasonable judgment, fail to maintain the ANTENNA FACILITY and PROPERTY to the above standards, then following COMPANY's receipt of written notice of such failure (which receipt shall be deemed to be two (2) business days following the date of a notice sent to COMPANY in full accordance with the provisions of Section 15 of this AGREEMENT) and COMPANY's continued failure to correct such maintenance of the ANTENNA FACIL TY and the PROPERTY within thirty (30) days of such receipt, CITY may enter upon the PROPERTY and effectuate such acts as it deems necessary to comply with such standards. Any costs incurred by the CITY will be payable by the COMPANY within thirty (30) days of receipt of an itemized bill therefor.
F. CITY will maintain and repair the PROPERTY and Access thereto and all areas of the LICENSED AREA where COMPANY does not have exclusive control, in good and tenantable condition, subject to reasonable wear and tear and damage from the elements.
SECTION 7. TERMINATION.
A. Termination with Cause.
Except as otherwise provided in this AGREEMENT, CITY or COMPANY shall have the right to terminate this AGREEMENT immediately (i) if the other party fails to cure a material breach of any term or condition hereof, within thirty (30) days after notice to the other party of such breach has been received (which receipt shall be deemed to be two (2) business days following the date of a notice sent to COMPANY in full accordance with the provisions of Section 15 of this AGREEMENT); or (ii) if said cure cannot be reasonably be completed within thirty (30) days, curative actions have not commenced within said thirty (30) days and thereafter diligently prosecuted to 8
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
completion; or (iii) if COMPANY's operation is reasonably deemed by CITY to endanger or pose a threat to the public health, safety or welfare, including, without limitation, and as an example, if operation of the ANTENNA FACILITY adversely interferes with, or otherwise adversely affects CITY communications or operations and such threat or danger cannot reasonably be cured in accordance with the provisions of Section 7.A.1.i and Section 7.A.1.ii above; (iv) if CITY is mandated by law, a court order or decision, or the federal, state or local government to take certain actions that will cause or require the removal of the ANTENNA FACILITY from the LICENSED AREA; or (v) upon 12 months' prior written notice if the removal of the ANTENNA FACILITY from the LICENSED AREA is needed to accommodate the construction, installation, operation, repair or maintenance of any improvement desired by CITY.
B. Termination - General.
1. This AGREEMENT may be terminated by COMPANY upon receipt of written notice by CITY (which receipt shall be deemed to be two (2) business days following the date of a notice sent to CITY in full accordance with the provisions of Section 15 of this AGREEMENT), if COMPANY is unable to obtain, or maintain, any required approval(s) or the issuance of a license or permit by any agency, board, court or other governmental authority necessary for the construction or operation of the ANTENNA FACILITY as now or hereafter intended by COMPANY; or if COMPANY determines, in its sole discretion that the cost of obtaining or retaining the same is commercially unreasonable. Notwithstanding the foregoing, COMPANY will use commercially reasonable efforts to obtain the necessary government approvals, licenses or permits in a reasonable and timely manner;
2. This AGREEMENT may be terminated by COMPANY, upon receipt of written notice by CITY (which receipt shall be deemed to be two (2) business days following the date of a notice sent to CITY in full accordance with the provisions of Section 15 of this AGREEMENT), if COMPANY determines, in its sole discretion, due to the title report results or survey results, that the condition of the LICENSED AREA is unsatisfactory for COMPANY's intended uses;
3. This AGREEMENT may be terminated by COMPANY upon receipt of written notice by CITY (which receipt shall be deemed to be two (2) business days following the date of a notice sent to CITY in full accordance with the provisions of Section 15 of this AGREEMENT) for any reason or no reason, at any time prior to commencement of construction by COMPANY; or
4. This AGREEMENT may be terminated by COMPANY upon receipt by CITY (which receipt shall be deemed to be two (2) business days following the date of a notice sent to CITY in full accordance with the provisions of Section 15 of this AGREEMENT) of at least sixty (60) days' prior written notice from COMPANY for any reason or no reason.
9
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
C. Removal of Facility Upon Termination.
COMPANY shall remove the ANTENNA FACILITY and repair and restore the affected areas of the LICENSED AREA and the PROPERTY prior to the expiration of this AGREEMENT. If this AGREEMENT is terminated by either party earlier than the expiration of the term, COMPANY shall promptly remove the ANTENNA FACILITY and repair and restore the affected areas of the LICENSED AREA and the PROPERTY to its condition at the commencement of this AGREEMENT, reasonable wear and tear and loss by casualty or other causes beyond COMPANY'S control excepted.
Notwithstanding the foregoing, COMPANY will not be responsible for the replacement of any trees, shrubs or other vegetation or removal of underground utilities on or under the LICENSED AREA, except if damaged by COMPANY. COMPANY will remove footings, foundations, and concrete to a depth of up to one (1) foot below grade no later than one hundred twenty (120) days after notice of termination. Removal of the ANTENNA FACILITY shall be at COMPANY's sole cost and expense, except as specifically provided otherwise in this AGREEMENT. Should the COMPANY, or its successor in interest or assign, in the CITY'S sole but reasonable judgment, fail to remove, repair or restore, CITY may enter upon the PROPERTY and effectuate such acts as it reasonably deems necessary to comply with such standards. Any costs incurred by the CITY will be payable by the COMPANY within thirty (30) days of receipt (which receipt shall be deemed to be two (2) business days following the date of a notice sent to COMPANY in full accordance with the provisions of Section 15 of this AGREEMENT) of an itemized bill therefor. The obligation of COMPANY to pay CITY for such costs shall survive termination of this AGREEMENT.
D. Prorated Use Charge Reimbursement.
In the event of the early termination of this AGREEMENT, CITY will reimburse COMPANY the unused portion of the USE CHARGE after proration and proper computation.
SECTION 8. NO LIABILITY.
A. Liability.
CITY, its agents, officers, employees or contractors, shall not be liable for any damage from any cause whatsoever to the ANTENNA FACILITY, specifically including, without limitation, damage, if any, resulting from CITY's maintenance operations adjacent to the ANTENNA FACILITY or from vandalism or unauthorized use of the ANTENNA FACILITY, except to the extent such damage is caused by the negligence or willful misconduct of CITY, its agents, officers, employees or contractors.
B. Security.
COMPANY shall take reasonable precautions against damage to or unauthorized use of the ANTENNA FACILITY and LICENSED AREA. CITY shall not be liable for any 10
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
vandalism or other damage that may occur to the ANTENNA FACILITY or in the LICENSED AREA or any unauthorized use of the ANTENNA FACILITY or LICENSED AREA except as provided in Section 8.A., above.
SECTION 9. PLANS AND SPECIFICATIONS; PERMITS.
A. CITY shall have the right of prior review and approval of all Plans and Specifications and shall have the right to inspect the ANTENNA FACILITY and LICENSED AREA at any time during and after installation to ensure compliance with such Plans and Specifications upon forty-eight (48) hours prior notice to COMPANY.
COMPANY shall not commence installation or alteration of the ANTENNA FACILITY, or any portion thereof, until CITY has first approved the Plans and Specifications and COMPANY has obtained all applicable permits. Approval of Plans, Specifications and Permits shall not release COMPANY from the responsibility for, or the correction of, any errors, omissions or other mistakes that may be contained in the Plans, Specifications and/or Permits. COMPANY shall be responsible for notifying CITY and all other relevant parties promptly upon discovery of such omissions and/or errors.
CITY will not unreasonably withhold, condition or delay its approval of the Plans and Specifications. If the CITY has not approved such Plans and Specifications within thirty (30) days of receipt, such Plans and Specifications shall be deemed approved to the extent allowed by law. The Plans and Specifications for the original ANTENNA FACILITY, as provided to the City on December 2, 2011, are deemed approved.
B. COMPANY agrees to and shall perform any work in furtherance of the Plans, Specifications and Permits at COMPANY's sole expense and in accordance with and in a manner CITY is satisfied conforms to Plans, Specifications and Permits as may be approved by CITY in furtherance of this AGREEMENT. CITY will provide COMPANY an official notice, signed by the City Manager, if CITY is not satisfied that work completed by the COMPANY conforms to Plans, Specifications and Permits approved by the CITY.
C. COMPANY will submit four (4) sets of such Plans and Specifications to the CITY at the address set forth for Notices in Section 15 herein, which CITY shall use for description and acceptance of the ANTENNA FACILITY. COMPANY shall supply the CITY any additional information it may reasonably request before approving the Plans and Specifications in a format which is reasonably acceptable to the CITY.
D. COMPANY shall apply for and obtain all applicable permits as are required by CITY to perform the work described in this AGREEMENT and shall comply with all of the terms and conditions set forth in such permits, including, without limitation, allowing CITY personnel to inspect the installation of the ANTENNA FACILITY on the LICENSED AREA or PROPERTY. COMPANY shall arrange for, obtain and bear costs of all: permits (including without limitation any fees as required by any federal, state or local law, statue, ordinance, rule or regulation); plan check and inspection fees; licenses; environmental impact reports; site preparation; surface treatment and relocation of any facilities on the LICENSED AREA or PROPERTY, as necessary or 11
Market: San Francisco, Sacramento (South Bay), ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
required for health or safety in the construction or alteration of the LICENSED AREA, and as a result of COMPANY'S work on the LICENSED AREA or PROPERTY. As a condition of this AGREEMENT, COMPANY agrees to perform the covenants and conditions contained in any permit issued or to be issued to COMPANY by CITY's Chief Engineer or his designees.
E. COMPANY shall not commence physical installation of the ANTENNA FACILITY before approval of Plans and Specifications pursuant to Subsection 9.A, and obtaining approval of all applicable permits pursuant to Subsection 9.D. Approval of Plans and Specifications by CITY Departments shall not release COMPANY from the responsibility for, or the correction of, any errors, omissions or other mistakes that may be contained in Plans and Specifications. COMPANY agrees to perform any work at COMPANY'S sole cost and at COMPANY'S sole expense and in accordance with and in a manner CITY is satisfied conforms to Plans and Specifications as may be approved by CITY in furtherance of this AGREEMENT.
SECTION 10. INDEMNIFICATION.
COMPANY shall protect, defend, indemnify, and hold harmless CITY, its officers, employees and agents against any claim, loss or liability arising from or related to any damage, injury or loss caused by, or resulting from, the installation, maintenance, operation or use of the ANTENNA FACILITY, the provision of SERVICES, or resulting in any way from COMPANY's occupation or use of the PROPERTY or the LICENSED AREA, including, without limitation, that which is due, in whole or in part, to the willful misconduct or negligent acts (active or passive) or omissions by COMPANY, its officers, employees, consultants or agents. COMPANY's obligation to indemnify and hold harmless excludes only such claim, loss or liability that is due to the negligence or willful misconduct of CITY and/or its officers, employees, consultants or agents. All of COMPANY's obligations under this SECTION are intended to apply to the fullest extent permitted by law and shall survive the expiration or sooner termination of this AGREEMENT.
CITY shall protect, defend, indemnify and hold harmless COMPANY, its officers, employees and agents from and against any claim, loss or liability arising from or related to any damage, injury or loss caused by, or resulting from, CITY's installation, maintenance, operation or use of the PROPERTY, the provision of CITY's services, or resulting in any way from CITY's occupation or use of the Property including without limitation, that which is due, in whole or in part, to the willful misconduct or negligent acts (active or passive) or omissions of CITY and/or its officers, employees, consultants or agents. CITY's obligation to indemnify and hold harmless excludes only such claim, loss or liability that is due to the negligence or willful misconduct of COMPANY and/or its officers, employees, consultants or agents. All of CITY's obligations under this SECTION are intended to apply to the fullest extent permitted by law and shall survive the expiration or sooner termination of this AGREEMENT. 12
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
SECTION 11. TAXES.
A. COMPANY shall pay before delinquency any and all taxes, assessments, licenses, fees and other public charges which may be levied, assessed or imposed upon any of COMPANY's interests herein, upon COMPANY's businesses, upon COMPANY for the privilege of conducting business, or upon any property of COMPANY at the PROPERTY. COMPANY is advised that this AGREEMENT may, but is not intended to, create a possessory interest in the LICENSED AREA, for which COMPANY may be subject to payment of possessory interest taxes therefore, for which CITY shall not be liable. Payment of any possessory interest tax shall not reduce in any way any charges or other fees required to be paid by COMPANY hereunder.
B. COMPANY shall not permit or suffer any liens to be imposed upon the PROPERTY or any portion thereof, without promptly discharging the same, provided, however, that COMPANY may, if it so desires, contest the legality of same following prior written notice to CITY. In the event of a contest of a lien, COMPANY shall provide a bond in an amount and in a form reasonably acceptable to CITY immediately following request therefor by CITY.
SECTION 12. INSURANCE.
A. COMPANY, at COMPANY's own expense throughout the Term of this AGREEMENT, as extended, shall comply with the insurance requirements attached hereto as Exhibit F and incorporated by reference herein. The procuring of the policy or policies of insurance required by Exhibit F shall neither be construed to limit COMPANY's liability hereunder nor to fulfill the indemnification provisions and requirements of this AGREEMENT. Notwithstanding the policy or policies of insurance, COMPANY shall be obligated for the full and total amount of any damage, injury or loss caused by its negligence or willful misconduct arising out of this AGREEMENT or COMPANY's use of the PROPERTY or the LICENSED AREA.
B. COMPANY shall deposit with CITY, on or before the EFFECTIVE DATE, certificates of insurance and the required endorsements in forms reasonably satisfactory to CITY, indicating compliance with the insurance provisions of this AGREEMENT. COMPANY shall keep the insurance in effect, and the certificates evidencing the insurance on deposit with CITY, during the Term of the AGREEMENT and as the same may be extended.
SECTION 13. FREQUENCY INTERFERENCE.
A. COMPANY will not cause, permit or allow the installation, operation, maintenance or use of the ANTENNA FACILITIES or any other equipment installed pursuant to this AGREEMENT to interfere with: (1) any CITY use of the PROPERTY except that the foregoing shall not hinder or restrict COMPANY'S normal use of the LICENSED AREA as contemplated by this AGREEMENT and provided in Section 1; (2), CITY equipment used at the PROPERTY except that the foregoing shall not hinder 13
Market: San Francisco, Sacramento (South Bay). ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
or restrict COMPANY'S normal use of the LICENSED AREA as contemplated by this AGREEMENT and provided in Section 1; (3) CITY communications provided that the CITY communications operate and continue to operate within the applicable frequencies and in accordance with all applicable laws and regulations; and/or (4) or any pre-existing third party uses of the PROPERTY, including uses of communications equipment, which uses were authorized or planned by CITY prior to the execution of this AGREEMENT, provided that the third party communications users operate and continue to operate within the applicable frequencies and in accordance with all applicable laws and regulations. COMPANY shall immediately provide, in writing, to the CITY at the address set forth for notices in Section 15 herein, the frequencies utilized in the operation of the ANTENNA FACILITIES. COMPANY shall also provide the CITY, at the same address, with written notice of any intended changes in those frequencies, a description of those frequencies and the dates that those frequency changes are anticipated to occur, at least thirty (30) days prior to the date that those frequency changes are anticipated to occur. COMPANY shall not begin any work on the PROPERTY pursuant to this AGREEMENT until these frequencies have been approved in writing by CITY's Public Works Director or any other person that may be designated to make such approval by CITY's City Manager, which approval shall not be unreasonably withheld, conditioned or delayed.
B. Provided that the existing communications users (including the City) operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations, COMPANY shall ensure that its use of the ANTENNA FACILITY does not interfere with any communication transmissions from the PROPERTY, including, if applicable and without limitation, the CITY's public safety transmissions, police and fire communications, CITY's internal or external communications, or communications by CITY's tenants or contractors.
C. If COMPANY's construction, installation, maintenance, operation, use or removal of the ANTENNA FACILITY violates this Section 13, COMPANY shall, within forty-eight (48) hours after receipt of written notice of such violation from CITY, eliminate such violation or interference. In the event any such violation or interference does not cease within the aforementioned cure period, COMPANY shall cease all operations which are suspected of causing such violation or interference ( except for intermittent testing to determine the cause of such interference) until the interference has been corrected.
D. Notwithstanding anything contained to the contrary herein, CITY will not use, nor will CITY permit its employees, tenants, licensees, invitees, agents or independent contractors to use, any portion of the PROPERTY in any way which interferes with the ANTENNA FACILITY, the operations of COMPANY or the rights of COMPANY under this AGREEMENT. CITY will cause such interference to cease within forty-eight (48) hours after receipt of written notice of interference from COMPANY. In the event any such interference does not cease within the aforementioned cure period, CITY shall cease all operations which are suspected of causing interference (except for 14
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
intermittent testing to determine the cause of such interference) until the interference has been corrected.
E. COMPANY shall use its best efforts to operate its communications equipment in a manner that is consistent with all applicable frequencies assigned to it by the Federal Communications Commission ("FCC"), if any, and, in any event, shall at all times operate in compliance with all applicable FCC rules and regulations.
SECTION 14. EMERGENCY.
A Notwithstanding Section 13, COMPANY agrees that in the event that an "emergency situation" (as defined below) occurs, and there are frequency interferences between CITY's communication equipment and that of COMPANY, CITY shall have the right to immediately shut off any power to the LICENSED AREA, and any equipment of COMPANY's located on the PROPERTY. CITY shall provide COMPANY immediate oral notice of the interference and power shut down and shall restore power as soon as reasonably possible once the frequency interference problem creating the emergency situation has been corrected. For purposes of this Section, CITY shall provide oral notice to AT&T Mobility Network Triage Center at 800-638-2822, Option #9 of COMPANY at the telephone number provided by COMPANY to PROJECT MANAGER. Except to the extent caused by the gross negligence or intentional acts or omissions of CITY and/or its agents, employees, and/or contractors, if an emergency situation occurs, and there are frequency interferences between CITY'S communication equipment and that of COMPANY, and as a result CITY shuts off power to the LICENSED AREA and any equipment of COMPANY's located on the PROPERTY, COMPANY agrees not to hold CITY responsible or liable for and shall protect, defend, indemnify and hold CITY harmless pursuant to SECTION 10 for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of, or of the power outage to, the LICENSED AREA or communication facilities on the LICENSED AREA at PROPERTY, including without limitation losses arising out of the inability to use facilities on the LICENSED AREA, including without limitation the ANTENNA FACILITY, and/or the inability of third parties to receive SERVICES, including SERVICES, from facilities located on the LICENSED AREA. At the CITY'S discretion, COMPANY agrees to install a master power "cut-off' switch on their equipment for the purpose of assisting CITY in such an emergency.
B. Unless otherwise specifically provided in a notice of termination of this AGREEMENT, CITY's exercise of the right to shut off any power to the ANTENNA FACILITY pursuant to this SECTION is not intended to constitute a termination of this AGREEMENT by either party. COMPANY and CITY shall meet after the CITY determines that an emergency situation has ended to establish the time and manner in which power shall be restored to the ANTENNA FACILITY.
C. For the purposes of this section, CITY shall have the sole discretion to determine what constitutes an "emergency situation" pursuant to this Section. These 15
Market: San Francisco, Sacramento (South Bay), ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
situations shall be limited to situations in which public safety or public utility communications are interrupted.
SECTION 15. NOTICES.
Except as otherwise specifically set forth and allowed under this AGREEMENT, all written notices, requests and demands herein required will be given by first class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when property sent and received, refused or returned undelivered. Notices will be addressed to the parties as follows:
To CITY:
With a copy to:
To COMPANY:
City Manager
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
Office of the City Attorney
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site#: CC0750
Cell Site Name: McKean Rd 2 (CA)
Fixed Asset#: 10151482
575 Morosgo Drive NE
Suite 13-F, West Tower
Atlanta, GA 30324
With a copy to AT & T Legal Department:
If sent via registered or certified mail to:
New Cingular Wireless PCS, LLC
AT & T Legal Department - Network Operations
Attn: Network Counsel
Re: Cell Site #:CC0750;
Cell Site Name: McKean Rd 2 (CA)
Fixed Asset#: 10151482
208 S. Akard Street
Dallas, TX 75202-4206
16
Market: San Francisco, Sacramento (South Bay), ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
If sent via nationally recognized overnight courier to:
New Cingular Wireless PCS, LLC
AT & T Legal Department - Network Operations
Attn: Network Counsel
Re: Cell Site #:CC0750
Cell Site Name: McKean Rd 2 (CA)
Fixed Asset #: 10151482
208 S. Akard Street
Dallas, TX 75202-4206
The copy sent to the AT&T Legal Department or to the Office of the City Attorney is an administrative step which alone does not constitute legal notice. Either party hereto may change the place for the giving of notice to it by thirty (30) days prior written notice to the other as provided herein.
SECTION 16. RIGHT TO USE SUBORDINATE.
The right to use the PROPERTY(excluding the LICENSED AREA) herein granted by CITY to COMPANY, and all rights and privileges hereunder, are and shall be subordinate to the rights of CITY and to other existing tenants to use and occupy, and to any occupancy by them of, the PROPERTY (excluding the LICENSED AREA.) SECTION 17. ASSIGNMENT.
COMPANY shall not voluntarily or by operation of law, assign, transfer, mortgage, sublet, or otherwise transfer or encumber all or any part of COMPANY's interest in this AGREEMENT or in the LICENSED AREA, without CITY's prior written consent, which will not be unreasonably withheld, delayed or conditioned; provided, however, COMPANY shall have the right to sublease or assign its rights under this AGREEMENT to any of its subsidiaries, affiliates or successor legal entities or to any entity acquiring substantially all of the assets of COMPANY.
SECTION 18. GOVERNING LAW.
This AGREEMENT shall be construed by, and in accordance with, the laws of the State of California.
SECTION 19. NO INTEREST IN PROPERTY.
Nothing herein shall be deemed to create a lease or easement of any property, or to grant any interest in the PROPERTY, other than a real property license to use the LICENSED AREA, terminable as set forth herein.
17
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
SECTION 20. INSPECTION.
The LICENSED AREA shall be at all times under control of the CITY, whose officials, employees and agents shall have the right to enter the LICENSED AREA, and all portions thereof on forty-eight (48) hours advance oral notice, for purposes of inspection (and other purposes contemplated by this AGREEMENT) at all times during the period covered by this AGREEMENT.
SECTION 21. UTILITIES.
COMPANY shall be solely responsible for ensuring that the LICENSED AREA has adequate electrical power and any other utility service necessary or useful to operation of the ANTENNA FACILITY. CITY is not obligated to make electricity or other utilities available if there is an interruption in such service to the LICENSED AREA or to the PROPERTY. COMPANY shall not do, nor shall it permit anything to be done, which may interfere with the effectiveness or accessibility of the utility, heating, ventilation, diesel exhaust or air conditioning systems or portions thereof of the PROPERTY.
CITY grants to any company providing utility or similar services, including electric power and telecommunications, to COMPANY a license over the Property, from an open and improved public road to the LICENSED AREA, and upon the LICENSED AREA, for the purpose of constructing, operating and maintaining such lines, wires, circuits, and conduits, associated equipment cabinets and such appurtenances thereto, as such companies may from time to time require in order to provide such services to the LICENSED AREA.
SECTION 22. NOT AGENT OF CITY.
Neither anything in this AGREEMENT nor any acts of COMPANY shall authorize COMPANY or any of its employees, agents or contractors to act as agent, contractor, joint venture or employee of CITY for any purpose.
SECTION 23. RESERVATION OF RIGHTS.
COMPANY understands, acknowledges and agrees that any and all authorizations granted to COMPANY under this AGREEMENT shall remain subject to all prior and continuing regulatory and proprietary rights and powers of CITY to regulate, govern and use CITY property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect CITY property. CITY and COMPANY agree that nothing contained in, or contemplated by, this AGREEMENT is intended to confer, convey, create or grant to COMPANY any perpetual interest in any CITY property or in any of CITY's public rights of way. 18
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
SECTION 24. CONFLICT OF INTEREST.
COMPANY shall avoid all conflict of interest or the appearance of conflict of interest in the performance of this AGREEMENT.
SECTION 25. ENVIRONMENTAL
A. CITY represents and warrants that to the best of its knowledge: (i) the PROPERTY, as of the date of this AGREEMENT, is free of hazardous substances, including asbestos-containing materials and lead paint, and (ii) the PROPERTY has never been subject to any contamination or hazardous conditions resulting in any environmental investigation, inquiry or remediation. Except for emergency back-up power supplies and cleaning solvents commonly used in telecommunication operations, COMPANY represents and warrants that COMPANY shall not bring any hazardous substances, including asbestos-containing materials and lead paint, onto any portion of the PROPERTY. CITY and COMPANY agree that each will be responsible for compliance with any and all applicable governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common law regulating or imposing standards of liability or standards of conduct with regard to protection of the environment or worker health and safety, as may now or at any time hereafter be in effect, to the extent such apply to that party's activity conducted in or on the PROPERTY.
B. CITY and COMPANY agree to hold harmless and indemnify the other from, and to assume all duties, responsibilities and liabilities at the sole cost and expense of the indemnifying party for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding ("Claims"), to the extent arising from that party's breach of its obligations or representations under Section 25. CITY agrees to hold harmless and indemnify COMPANY from, and to assume all duties, responsibilities and liabilities at the sole cost and expense of CITY for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any Claims, to the extent arising from subsurface or other contamination of the PROPERTY with hazardous substances prior to the EFFECTIVE DATE of this AGREEMENT or from such contamination caused by the acts or omissions of CITY during the term. COMPANY agrees to hold harmless and indemnify CITY from, and to assume all duties, responsibilities and liabilities at the sole cost and expense of COMPANY for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any Claims, to the extent arising from hazardous substances brought onto the PROPERTY by COMPANY.
C. The indemnifications of this Section 25 specifically include reasonable costs, expenses and fees incurred in connection with any investigation of PROPERTY conditions or any clean-up, remediation, removal or restoration work required by any governmental authority. The provisions of this Section 25 will survive the expiration or termination of this AGREEMENT.
19
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
D. In the event COMPANY becomes aware of any hazardous materials or substances on the PROPERTY, or any environmental, health or safety condition or matter relating to the PROPERTY, that, in COMPANY's sole determination, renders the condition of the LICENSED AREA or PROPERTY unsuitable for COMPANY's use, or if COMPANY believes that the licensing or continued licensing of the LICENSED AREA would expose COMPANY to undue risks of liability to a government agency or third party, COMPANY will have the right, in addition to any other rights it may have at law or in equity, to terminate this AGREEMENT upon written notice to CITY.
SECTION 26. MISCELLANEOUS.
A. Whenever the singular number is used in this AGREEMENT and when required by the context, the same shall include the plural and the masculine gender shall include the feminine and neuter genders.
B. If there be more than one (1) entity designated in, or signatory to, this AGREEMENT, the obligations hereunder imposed upon COMPANY shall be joint and several; and the term COMPANY as used herein shall refer to each and every of said signatory parties, severally as well as jointly.
C. This instrument contains all of the agreements and conditions entered into and made by and between the parties and may not be modified orally, or in any manner, other than by an agreement in writing signed by all the parties hereto or their respective successors-in interest.
D. Time is, and shall be, of the essence for each term and provision of this AGREEMENT.
E. Each and every term, condition, covenant and provision of this AGREEMENT is and shall be deemed to be a material part of the consideration for CITY's entry into this AGREEMENT and any breach hereof by COMPANY shall be deemed to be a material breach. Each term and provision of this AGREEMENT performable by COMPANY shall be construed to be both a covenant and a condition.
F. The headings of the several paragraphs and sections of this AGREEMENT are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of any provisions of this AGREEMENT and shall not be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof.
G. In the event any covenant, condition or provision herein contained is held to be invalid by a court of competent jurisdiction, the invalidity of any such covenant, condition or provision shall in no way affect any other covenant, condition or provision herein contained, provided the invalidity of any such covenant, condition or provision does not materially prejudice either CITY or COMPANY in its respective rights and 20
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
obligations contained in the valid covenants, conditions and provisions of this AGREEMENT.
H. All exhibits and addenda referred to herein, and any exhibits or schedules which may from time to time be referred to in any duly executed amendment hereto, are by such reference incorporated herein and shall be deemed a part of this AGREEMENT as if set forth fully herein.
I. This AGREEMENT shall be interpreted and construed only by the contents hereof, and there shall be no presumption or standard of construction in favor of or against either party.
J. Days, unless otherwise specified, shall mean calendar days.
K. Whenever in this AGREEMENT the approval or consent of a party is required, such approval or consent must be in advance, shall be in writing, and shall be executed by a person having the express authority to grant such approval or consent unless the terms of this AGREEMENT specifically allow an oral approval or consent of a party.
L. This AGREEMENT may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
M. The parties each agree that all activities undertaken and services provided pursuant to this AGREEMENT by that party shall be undertaken and provided by or on behalf of that party only in a manner that fully comports with all applicable laws.
I
I
I
I
I
I
I
I
I
21
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
SECTION 27. MEMORANDUM/SHORT FORM LICENSE.
Contemporaneously with the execution of this Agreement, the parties will execute a recordable Memorandum or Short Form of License in the form attached as Exhibit G (the "Memorandum"). Either party may record this Memorandum or Short Form License at any time during the term, in its absolute discretion; provided, however, that the recording party shall provide the other party to this AGREEMENT with a true, accurate and conformed copy of the recorded Memorandum within five (5) business days of its recordation. Thereafter during the term of this AGREEMENT, either party will, at any time upon thirty (30) business days' prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum or Short Form of License.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the EFFECTIVE DATE.
ATTEST:
kLJJ)� 6f'y Clerk
Date: 1( �(I�
APPROVED:
�Daie: 7· · �/� j
(
T :\Agreements-Contracts-Deeds\Cell Tower License Agreement.doc "COMPANY""
New Cingular Wireless PCS, LLC,
a Delaware limited liability
company
BY; AT&T Mobility Corporation
lts:Mana� By: 7- �el Guibord
Date: -z--2--i:S Director
Title: ConstructioA & Engineering
22
Market: San Francisco, Sacramento (South Bay) _________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
EXHIBIT A
PROPERTY DESCRIPTION
Location: 2275 Rolling Hills Drive, Morgan Hill, CA
The Property is legally described as: (See next page attached hereto and incorporated herein.)
23
Market: San Francisco, Sacramento (South Bay). ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
LEGAL DESCRIPTION
Real property in the City of Morgan Hill, County of Santa Clara, State of California, described as follows:
PARCEL 1:
BEGINNING AT THE EASTERLY TERMINUS Of THE LINE COMMON TO LOTS 101 AND 102, BEING A POINT IN THE CENTERLINE Of LLAGAS AVENUE AS SAID LOTS AND AVENUE ARE SHOWN ON THE MAP ENillLED, "MORGAN HILL RANCH MAP NO. 3'', AND RECORDED IN BOOK G OF MAPS, PAGES 20 AND 21, SANTA CLARA COUNTY RECORDS, THENCE ALONG SAID COMMON LOT LINE THE FOLLOWING COURSES AND DISTANCES: NORTH 73° 00' 00" WEST,
61.38 FEET; SOUTH 84° 32' 10" WEST, 859.53 FEET; NORTH 68° 57' 14" WEST, 1040.59 FEET; NORTH 59° 19' 11" WEST 534.04 FEET; NORTH 61° 14' 26" WEST, 347.00; TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE FROM SAID TRUE POINT Of BEGINNING, CONTINUING ALONG THE LAST MENTIONED LOT LINE, NORTH 61° 14' 26" WEST, 70.00 FEET; THENCE LEAVING SAID COMMON LOT LINE, NORTH 28° 45' 34" EAST, 60.00 FEET; THENCE SOUTH 61 ° 14' 26" EAST, 70.00 FEET; THENCE SOUTH 28° 45' 34" WEST, 60.00' TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
PARCEL 2:
A NON-EXCLUSIVE EASEMENT, FOR THE PURPOSE OF INGRESS AND EGRESS, AND THE
INSTALLATION AND MAINTENANCE OF WATER PIPELINES AND APPURTENANCES THERETO, APPURTENANT TO AND FOR THE BENEFIT OF PARCEL 1 HEREIN DESCRIBED, OVER THE FOLLOWING DESCRIBED PARCEL OF LAND:
BEGINNING AT THE EASTERLY TERMINUS OF THE LINE COMMON TO LOTS 101 AND 102,
BEING A POINT IN THE CENTERUNE OF LLAGAS AVENUE AS SAID LOTS AND AVENUE ARE SHOWN ON THE MAP ENTITLED, "MORGAN HILL RANCH MAP NO. 3", AND RECORDED IN BOOK G OF MAPS PAGES 20 AND 21, SANTA CLARA COUNTY RECORDS, THENCE ALONG SAID COMMON LOT LINE THE FOLLOWING COURSES AND DISTANCES; NORTH 73° 00' 00" WEST,
61.38 FEET; SOUTH 84° 32' 10" WEST, 859.53 FEET; NORTH 68° 57' 14" WEST, 1040.59 FEET; NORTH 59° 19' 11" WEST, 534.04 FEET; NORTH 61° 14' 26" WEST, 60.00 FEET; TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE LEAVING SAID TRUE POINT OF BEGINNING, CONTINUING ALONG THE LAST MENTIONED LOT LINE NORTH 61° 14' 26" WEST, 368.55 FEET; THENCE LEAVING SAID COMMON LOT LINE ALONG THE FOLLOWING COURSES AND DISTANCES; NORTH 61° 14' 26" WEST, 95.00 FEET; NORTH 27° 16' 00" EAST, 55.00 FEET; NORTH 88° 46' 00" EAST, 166.50 FEET; SOUTH 47° 28' 11" EAST, 328.66 FEET; SOUTH 27° 16' 00" WEST 60.00 FEET; TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL OF LAND.
BEGINNING AT THE EASTERLY TERMINUS Of THE LINE COMMON TO LOTS 101 AND 102,
BEING A POINT IN THE CENTERLINE OF LLAGAS AVENUE AS SAID LOTS AND AVENUE ARE SHOWN ON THE MAP ENITTLED, "MORGAN HILL RANCH MAP NO. 3• AND RECORDED IN BOOK G OF MAPS, PAGES 20 AND 21, SANTA CLARA COUNTY RECORDS; THENCE ALONG SAID COMMON LOT LINE THE FOLLOWING COURSES AND DISTANCES: NORTH 73° 00' 00" WEST,
61.38 FEET; SOUTH 84° 32' 10" WEST, 859.53 FEET; NORTH 68° sr 14" WEST, 1040.59 FEET; NORTH 59° 19' 11" WEST 534.04 FEET; NORTH 61° 14' 26" WEST, 417 FEET TO THE TRUE POINT OF BEGINNING OF THE PARCEL TO BE DESCRIBED; THENCE FROM SAID TRUE POINT OF BEGINNING NORTH 61° 14' 26" WEST, SO FEET; THENCE NORTH 28° 45' 34" EAST, 30 FEET; THENCE SOUTH 61° 14' 26" EAST, 50 FEET; THENCE SOUTH 28° 45' 34" WEST, 30 FEET TO THE TRUE POINT OF BEGINNING.
APN: 764-02-011
Market: San Francisco, Sacramento (South Bay). _________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
EXHIBIT B
DESCRIPTION OF THE SERVICES
Company shall provide services in connection with its federally licensed communications business including, but not limited to, two-way radio signal transmission and reception in its licensed frequencies disclosed to City per Section 13.A above, and in the manner permitted under its licensure by the Federal Communications Commission and the California Public Utilities Commission. 25
Market: San Francisco, Sacramento (South Bay) _________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number. 10151482
EXHIBIT C
DESCRIPTION OF LICENSED AREA
The LICENSED AREA includes both the concrete pad/equipment cabinet area and the monopole antenna. This includes at least 12 antennas and at least 240 square feet of ground space as shown and described in detail on Exhibit C-1, attached hereto and incorporated herein by reference.
26
�:it:�� s�;:�:�:cisi�·o�;�ramento (South Bay}, _________ _ CeU Site Name: McKean Rd 2
Fixed Asset Number: 10151482
j, •' 1! ,:-r
f
l
I
f
I
J r�' -f h
r� ,ii
u
h
iI il
•z
..
1 1 ii
H .{
u
H
Ji
fi
•• r
11 •: ;f
SECTOR 'B'
..,_ 27fl
,/' ,,__-�-.. �
5£CTOR '4'
65';,
I .... ·---- ••-=-,..-=-=--••-� =
SECTOR 'C'
145'\
.,_.==':�
Exhibit C-1
_'t()l.LJ�_ffi
�-
ii �
f
7:!:..�
'I I: SITEPUII
"' -�!• H1 �oG YCVAHIIOOD2 e at&t ; :::.._= ::: o=- OWAAU.·a:. ....... (,. -� CCUQ'1aD � J Hnu,,>1-->UM• �� IE. 'lfl•- tTl:J W--iWii,j,.ilc �1'! JICL>'flO, MUS 04.. 44,0 � CM\IL, a.DI; t J.. 1),1) •1.J,ll;,l •.....,. - _,__ .. -. w:: • - - - }i, --=-=-�-::- -=: � �� �'M>'I. D � --=-- I�:-- -= : ._?Z �,�r.u I .--a:u::7$0 , ,IOI J• 6 f � j 4 "!- J f 2 ......... ·••T·
D
9 27
Market: San Francisco, Sacramento (South Bay) _________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
EXHIBIT D
ANTENNA FACILITY
Telecommunications facilities including, without limitation, a new 50' tall monopole with 12 antennas, as shown on the attached Exhibit D-1, attached hereto and incorporated herein by reference.
28
Marlcet San Francisco, Sacramento (South Bay)_
Celt Site Numbe1
Cell Site Name: �=o,===
Fixed Asset Number. 10151482_
.:�
'·•
'I ii
!j
, ..
Exhibit D-1
--- ���?�"-�- -- _- �?
-=•
'°;�
.�:-.':·:--� .,-,
'<"
-',-:- �r.,u]::i�J�
/I �\.·''\: ,•
-, ., •• ,:.:..''
I
I
� j"f• I/ •II
--
I , - �_:_; ,@
-= =-;,:-_:;,,, ---
_ ----_. _. ---
----- -----
-
--------------f
----------
----
, 1
, •
------���;:_,;----------- - --- _j -·· -- - -�
___ .,.,,,::.: ---- - --- --�:;;:: ··-
/�:-;;,;;�--;..��:
- . -
"" - __ .,_
-= .... -
. ffi
"" .. -
-
i �,..=�----H==t>-_J
@ i ffi ••aJ -�-=� - �a,,--- ��-111'� =-,,-
•"'""-
; �tCfOR 'B'
_{•2k,:��-·-o- I
�=-,a
!.��
'"i'\ e/ I
SECTOR 'C'
145''
=��
I
\ ·-;='(@):.. �
ri ).. •
.-�-:: _;;.:.,.�/ ,' fa.l'//.70" _,/'
- --
·,. _,,_-,..,__-: ;<" _/
eG
--- ,,, ,.
-
_,/ ·,, �� I
�-=..--=-·- '"';t'·-·
,,
I 11
-
I
···--
' - I
���
����=
I
C
B
29
Market: San Francisco, Sacramento (South Bay). ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
1.2 RATE SCHEDULE
EXHIBIT E
CHARGES FOR ATTACHMENT OF TELECOMMUNICATION
ANTENNAS/EQUIPMENT TO CITY OF MORGAN HILL OWNED PROPERTIES* *
12 to 14 antennae and/or fenced area containing equipment or $40,000 per annum cabinet is less than 270 square feet
15 to 18 antennae and/or fenced area containing equipment or $48,000 per annum cabinet is 270 to 499 square feet
19 or more antennae and/or fenced area containing equipment $56,000 per annum or cabinet is 500+ square feet but not more than 24 antennas and 2000 square feet
Requests for facilities containing more than 24 antennae and/or foundation/surface area containing equipment in excess of 2000 square feet shall be reviewed and priced on a case-by-case basis
•Licensees which choose to pay for 5 years upon the Use Charge Commencement shall be charged the above rates less a 20% discount without any applicable annual increases. Notwithstanding anything to the contrary contained herein, the Use Charge shall be prorated for any partial portion of the 5 years (if this payment option is elected by COMPANY) or any partial year or month occurring after the commencement of the Use Charge. Nothing contained in this Exhibit E shall require, or shall be construed to require, CITY to approve any additional antenna beyond the ANTENNA FACILITY. 30
Market: San Francisco, Sacramento (South Bay), ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
EXHIBIT F
1. INSURANCE.
COMPANY shall procure and maintain for the duration of the contract, insurance against claims for injuries to persons or damages to PROPERTY, which may arise from, or in connection with, the performance of the work hereunder by COMPANY, its agents, representatives, employees or subcontractors.
A. Minimum Scope of Insurance.
Coverage shall be at least as broad as:
Insurance Services Office form number GL 0002 covering commercial General Liability and Insurance Services Office form number GL 0404 covering Broad Form Commercial General Liability; or insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001), including, X, C, U.
1. Explosion, Collapse & Underground coverage.
2. Insurance Services Office form number CA 0001 (Ed. 12/90) covering Automobile Liability, code 1 "any auto" (including without limitation "hired autos" and "non-owned autos.")
3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance.
4. "All-risk" or "Causes of Loss - Special Form" property insurance covering all risks of loss to any improvements or betterments installed or constructed by COMPANY on the PROPERTY, including without limitation the ANTENNA FACILITY, which may be self-insurance provided by COMPANY or a parent entity of COMPANY for such property insurance.
B. Minimum Limits of Insurance.
COMPANY shall maintain limits of at least:
1. Commercial General Liability: $1,000,000 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage.
31
Market: San Francisco, Sacramento (South Bay). ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $100,000 per accident.
4. Property Insurance: Full replacement cost with no co-insurance penalty provision or COMPANY's self insurance program described in Section 1(A)(4) above.
C. Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to, and approved by, the CITY. At the option of the CITY, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CITY, its officials, employees, agents and contractors; or COMPANY shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by the CITY.
The parties to this AGREEMENT acknowledge and agree that at some point in the future COMPANY may determine that it is in COMPANY's best interests to move to a self-insurance program for other insurance in addition to its currently self-insured property insurance listed in Sections 1(A)(4) and 1(8)(4) above.. COMPANY shall timely and fully coordinate with CITY if COMPANY opts to move to a self insurance program in the future and shall in that case allow CITY a reasonable opportunity and period of time: ( 1) to perform reasonable due diligence to confirm that the criteria set forth in Section O.1.e set forth below would be met; and (2) to review such program in advance of making any such change. CITY reserves the right to require COMPANY to maintain the scope of insurance set forth in this EXHIBIT F, rather than move to a selfinsurance program if, in the CITY'S determination a proposed self insurance program would not adequately meet the criteria set forth in Section 0.1.e herein below.
D. Other Insurance Provisions.
The policies are to contain, or be endorsed to contain, the following provisions:
1. Commercial General Liability and Automobile Liability Coverage(s) a. The City of Morgan Hill, its officers, employees, agents and contractors are to be covered as additional insured(s) as respects: Liability arising out of activities performed by or on behalf of, COMPANY; products and completed operations of COMPANY; premises owned, leased or used by COMPANY; and automobiles owned, leased, hired or borrowed by COMPANY. Additional insured status shall: (i) be limited to bodily injury, property damage or personal and advertising injury caused, in whole or in part, by COMPANY, its employees, agents or independent contractors; (ii) not extend to claims for punitive or exemplary damages arising out of the acts or omissions of CITY, its officers, employees, agents or contractors or 32
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
where such coverage is prohibited by law, or to claims arising out of the gross negligence of CITY, its employees, agents or independent contractors; (iii) not exceed COMPANY's indemnification obligation under this AGREEMENT, if any. The coverage shall contain no other special limitations on the scope of protection afforded to CITY, its officers, employees, agents and contractors.
b. COMPANY's required insurance coverage shall be primary insurance as respects CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by CITY, its officers, employees, agents or contractors shall be excess of COMPANY's insurance and shall not contribute with it.
c. Any failure to comply with reporting provisions of the policies by COMPANY shall not affect coverage provided CITY, its officers, employees, agents, or contractors.
d. Coverage shall state that COMPANY's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. e. As provided for in Section C hereinabove, if COMPANY moves to a self-insurance program in the manner described in Section C hereinabove, and includes CITY as an additional insured, COMPANY shall: (i) maintain sufficient capital reserves as approved annually by Ernst & Young or any successor auditing firm; (ii) comply with applicable laws, including the timely filing of required government documents; (iii) ensure that COMPANY or any parent company providing such insurance maintains a net worth of at least $500,000,000 throughout the term of this AGREEMENT; and (iv) use an independent third party administrator to manage all claims.
In the event that COMPANY elects, under and in the manner provided for in this EXHIBIT F, to self-insure its obligation to include CITY as an additional insured, the following provisions apply: CITY shall (i) promptly and no later than thirty (30) days after notice thereof provide COMPANY with written notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this Section and provide COMPANY with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like; (ii) not settle any such claim, demand, lawsuit, or the like without the prior written consent of COMPANY; and (iii) fully cooperate with COMPANY in the defense of the claim, demand, lawsuit, or the like.
33
Market: San Francisco, Sacramento (South Bay) ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
2. All Coverage(s)
Each insurance policy required by this AGREEMENT shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30) days' prior written notice has been given to CITY.
E. Acceptability of Insurers.
Insurance is to be placed with insurers rated at least A-VII by AM Best ..
F. Verification of Coverage.
COMPANY shall furnish CITY with certificates of insurance and with endorsements affecting coverage required by this AGREEMENT. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf.
Proof of insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the Risk Manager:
G. Subcontractors.
CITY OF MORGAN HILL
Risk Manager
17555 Peak Avenue
Morgan Hill, California 95112-5509
COMPANY shall include all subcontractors as insured(s) under its policies or shall obtain separate certificates and endorsements for each subcontractor. 34
Market: San Francisco, Sacramento (South Bay), __________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
When Recorded Return to:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
575 Morosgo Drive NE, 13F, West Tower
Atlanta, GA 30324
APN: 764 02 011
Cell Site#: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset #: 10151582
State: California
County: Santa Clara
EXHIBIT G
(Space Above This Line For Recorder's Use Only)
MEMORANDUM OF LICENSE
This Memorandum of License is entered into, effective on the latest signature date below, by and between City of Morgan Hill, a municipal corporation, having a mailing address of 17575 Peak Avenue, Morgan Hill, CA 95037 (hereinafter referred to as "City") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a mailing address of 575 Morosgo Drive NE, 13F, West Tower, Atlanta, GA 30324 (hereinafter referred to as "Company").
1. City and Company entered into a certain Installation and Property Use Agreement ("Agreement") on the __ day of _______ , 20_, for the purpose of installing, operating and maintaining a communications facility and other improvements. All of the foregoing are set forth in the Agreement.
2. The initial term will be five (5) years ("Initial Term") commencing on the Effective Date, which is the last signature date on the signature page of the Agreement, with two (2) successive five (5) year options to renew.
3. The portion of the land being licensed to Company (the "Licensed") is described in Exhibit 1 annexed hereto.
4. This Memorandum of License is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of License and the provisions of the Agreement, the provisions of the Agreement shall control. The Agreement shall be binding upon and inure lo the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Agreement.
35
Market: San Francisco, Sacramento (South Bay) __________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
IN WITNESS WHEREOF, the parties have executed this Memorandum of License as of the day and year written below.
CITY:
City of Morgan Hill,
a municipal corporation
By: _____________ _
Print Name:
Its: City Clerk
Date:
Prepared by:
Busch Law Firm
22525 SE 64'h Place, Suite 288
Issaquah, WA 98027
COMPANY:
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT & T Mobility Corporation
Its: Manager
By: _____________ _
Print Name:
Its:
Date:
36
Market: San Francisco, Sacramento (South Bay), __________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
CITY ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF ______ _
On--------=-----:---:------:--:----:-:- before me, _______________ , the undersigned, a Notary Public in and for said State, personally appeared __________ _ ---------,------,---:-----:---::-----:-:-----,----:-------:----:---:- -------,--:-:----:-----:--�
· who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________ _
Name __________ _
(typed or printed) (Seal)
37
Market: San Francisco, Sacramento (South Bay) __________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
COMPANY ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF ______ _
On _______________ before me, _______________ , the
undersigned, a Notary Public in and for said State, personally appeared __________ _ _____________________________________ , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________ _
Name __________ _
(typed or printed) (Seal)
38
Market: San Francisco, Sacramento (South Bay) __________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
EXHIBIT l
DESCRIPTION OF LICENSED AREA
to the Memorandum of License dated _______ , 201_, by and between City of Morgan Hill, a municipal corporation, as City, and New Cingular Wireless PCS, LLC, a Delaware limited liability company, as Company.
The License Area is described and/or depicted as follows:
Property Legal Description: See next page attached hereto and incorporated herein by reference.
39
Market: San Francisco, Sacramento (South Bay). ________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482
LEGAL DESCRIPTION
Real property in the City of Morgan Hill, County of Santa Oara, State of California, described as follows:
PARCEL 1:
BEGINNING AT THE EASTERLY TERMINUS OF THE LINE COMMON TO LOTS 101 AND 102,
BEING A POINT IN THE CENTERLINE OF LLAGAS AVENUE AS SAID LOTS AND AVENUE ARE SHOWN ON THE MAP ENTITLED, "MORGAN HILL RANCH MAP NO. 3", AND RECORDED IN BOOK G OF MAPS, PAGES 20 AND 21, SANTA CLARA COUNn' RECORDS, THENCE ALONG SAID COMMON LOT LINE THE FOLLOWING COURSES AND DISTANCES: NORTH 73° 00' 00" WEST,
61.38 FEET; SOUTH 84° 32' 10" WEST, 859.53 FEET; NORTH 68° 57' 14" WEST, 1040.59 FEET; NORTH 59° 19' 11" WEST 534.04 FEET; NORTH 61° 14' 26" WEST, 347.UU; TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE FROM SAID TRUE POINT Of BEGINNING, CONTINUING ALONG THE LAST MENTIONED LOT LINE, NORTH 61 ° 14' 26" WEST, 70.00 FEET; THENCE LEAVING SAID COMMON LOT LINE, NORTH 28° 45' 34" EAST, 60.00 FEET; THENCE SOUTH 61° 14' 26" EAST, 70.00 FEET; THENCE SOUTH 28° 45' 34" WEST, 60.00' TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
PARCEL 2:
A NON-EXCLUSIVE EASEMENT, FOR THE PURPOSE OF INGRESS AND EGRESS, AND THE
INSTALLATION AND MAINTENANCE OF WATER PIPELINES AND APPURTENANCES THERETO, APPURTENANT TO AND FOR THE BENEAT OF PARCEL 1 HEREIN DESCRIBED, OVER THE FOLLOWING DESCRIBED PARCEL OF LAND:
BEGINNING AT THE EASTERLY TERMINUS OF THE LINE COMMON TO LOTS 101 AND 102,
BEING A POINT IN THE CENTERLINE OF LLAGAS AVENUE AS SAID LOTS AND AVENUE ARE SHOWN ON THE MAP ENTITLED, "MORGAN HILL RANCH MAP NO. 3", AND RECORDED IN BOOK G OF MAPS PAGES 20 AND 21, SANTA CLARA COUNTY RECORDS, THENCf ALONG SAID COMMON LOT LINE THE FOLLOWING COURSES AND DISTANCES; NORTH 73° 00' 00" WEST,
61.38 FEET; SOUTH 84° 32' 10" WEST, 859.53 FEET; NORTH 68° 57' 14" WEST, 1040.59 FEET; NORTH 59° 19' 11" WEST, 534.04 FEET; NORTH 61° 14' 26" WEST, 60.00 FEET; TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE LEAVING SAID TRUE POINT OF BEGINNING, CONTINUING ALONG THE LAST MENTIONED LOT LINE NORTH 61 ° 14' 26" WEST, 368.55 FEET; THENCE LEAVING SAID COMMON LOT LINE ALONG THE FOLLOWING COURSES AND DISTANCES; NORTH 61° 14' 26" WEST, 95.00 FEET; NORTH 27° 16' 00" EAST, 55.00 FEET; NORTH 88° 46' 00" EAST, 166.50 FEET; SOUTH 47° 28' 11" EAST, 328.66 FEET; SOUTH 27° 16' 00" WEST 60.00 FEET; TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL Of LANO.
BEGINNING AT THE EASTERLY TERMINUS Of THE LINE COMMON TO LOTS 101 AND 102, BEING A POINT IN THE CENTERLINE Of LLAGAS AVENUE AS SAID LOTS AND AVENUE ARE SHOWN ON THE MAP ENTITLED, "MORGAN HILL RANCH MAP NO. 3" AND RECORDED IN BOOK G OF MAPS, PAGES 20 AND 21, SANTA CLARA COUNn' RECORDS; THENCE ALONG SAID COMMON LOT UNE THE FOLLOWING COURSES AND DISTANCES: NORTH 73° 00' 00" WEST,
61.38 FEET; SOUTH 84° 32' 10" WEST, 859.53 FEET; NORTH 68° 57' 14" WEST, 1040.59 FEET; NORTH 59° 19' 11" WEST 534.04 FEET; NORTH 61° 14' 26" WEST, 417 FEET TO THE TRUE POINT OF BEGINNING OF THE PARCEL TO BE DESCRIBED; THENCE FROM SAID TRUE POINT OF BEGINNING NORTH 61° 14' 26" WEST, 50 FEIT; THENCE NORTH 28° 45' 34" EAST, 30 FEET; THENCE SOUTH 61° 14' 26" EAST, 50 FEET; THENCE SOUTH 28° 45' 34" WEST, 30 FEET TO THE TRUE POINT Of BEGINNING.
APN: 764-02-011
Market: San Francisco, Sacramento (South Bay), ____________ _ Cell Site Number: CC0750
Cell Site Name: McKean Rd 2
Fixed Asset Number: 10151482 _
4 3 2
(E) EQUIPMENT
SHELTER (BY
OTHERS)
PROPOSED AT&T MONOPOLE
AND ANTHINAS WITH
RELATED EQUIPMENT
LEASE EXHIBIT
JOll NUWID't
25736-6.35-AA CNU0750 L(Ol
B
A
41
ACORD9 CERTIFICATE OF LIABILITY INSURANCE I �
DA'TE (MM/DDIYYYYI
06/28/2013
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s).
PRODUCER
Marsh USA Inc.
701 Market Street, Suite 1100
St. Louis, MO 63101
Attn: [email protected]
018566-GAW,CRT-13-14 X X
INSURED
New Cingular Wireless PCS, LLC
One AT&T Plaza
208 South Akard,
Room 2731
Dallas, TX 75202
COVERAGES CERTIFICATE NUMBER·
CvnTACT
NAME:
PHONE
l&ll' .,n l'vtl• I
FAX
IA/C Nol:
E-MAIL
ADDRESS:
INSURER(SI AFFORDING COVERAGE
INSURER A : Old Republic Insurance Co
INSURERS:
INSURER C:
INSURER D:
INSURER E:
INSURER F:
CHl-00470775!Kl2 REVISION NUMBER·
NAIC#
24147
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. N01WlTHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT 'MTH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR TYPE OF INSURANCE POLICY EFF POLICY EXP
LTR LIMITS , .. c .. ''""'"' POLICY NUMBER IMM/DOIYYYYI IMM/DOIYYYYI A GENERAL LIABILITY MWl'f 60244 06/01/2013 06/01/2014 EACH OCCURRENCE $ 1,000,000 COMMERCIAL GENERAL LIABILITY PREMISES IE���encel $ - 1,000,000 D CLAIMS-MADE 0 OCCUR MEO EXP (Any one person) $ N/A
PERSONAL & ADV INJURY s 1,000,000
GENERAL AGGREGATE $ 10,000,000
GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 1,000,000 rn POLICY n �f,P,: n LOC $ A AUTOMOBILE LIABILITY MWT821932 06/01/2013 06/01/2014 fe���'ii��1 f1NGLE LIMIT
s 1,000,000
ANY AUTO - BODILY INJURY (Per person) s
ALLO',M,!ED � SCHEDULED
AUTOS AUTOS BODILY INJURY (Per accident) $
...._ NON-0',M,!ED rte��r'Tnt�AMAGE
HIRED AUTOS AUTOS
$
UMBRELLA LIAB H
OCCUR EACH OCCURRENCE $
EXCESS LIAB CLAIMS-MADE AGGREGATE $
DED I I RETENTION$ $
A WORKERS COMPENSATION MWC 118473 00 06/01/2013 06/01/2014 X I l;��TfJ,¥;; I j O
Jr- AND EMPLOYERS' LIABILITY YIN 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE 0 E.L EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA 1,000,000 (Mandatory In NH) E.L. DISEASE - EA EMPLOYEE $ iti��ftfi� 'b�PERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Addltlonol Remari<a Schedule, If more space Is required) Re: City of Morgan Hill, 17575 Peak Avenue, Morgan Hill, CA 95037 The City of Morgan Hill, its officers, employees, agenls and contractors are included as Additional Insured under the General Liability and Automobile Liability policies bul only with respecl lo the requirements of the contract belween the Certificate Holder and the Insured. This insurance is primary with respect to the interest of the Additional Insured and any other insurance maintained by Additional Insured is excess and noncontributory with this insurance.
CERTIFICATE HOLDER CANCELLATION
City of Morgan Hill SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Attn: City Manager THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 17575 Peak Ave. ACCORDANCE WITH THE POLICY PROVISIONS.
Morgan Hill, CA 95037
AUTHORIZED REPRESENTATIVE
of Marsh USA Inc.
I Manashi Mukherjee ...l>'lA-vu>okA �
© 1988-2010 ACORD CORPORATION. All rights reserved.
ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD
AGENCY CUSTOMER ID: _0-'--1_8...;.5_;_66 ______________ _ LOC #: St. Louis
ADDITIONAL REMARKS SCHEDULE Page 2 of 2
AGENCY NAMED INSURED
Marsh USA Inc. New Cingular Wireless PCS, LLC
One AT&T Plaza
POLICY NUMBER 208 South Akard,
Room 2731
Dallas, TX 75202
CARRIER I NAIC CODE
EFFECTIVE DATE:
ADDITIONAL REMARKS
THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: Certificate of Liability Insurance Coverage evidenced applies to Subsidiaries of AT&T Inc., EXCLUDING Pacific Bell Telephone Company, Nevada Bell Telephone Company, Southwestern Bell Telephone Company, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Michigan Bell Telephone Company, The Ohio Bell Telephone Company, Wisconsin Bell, Inc., The Southern New England Telephone Company and BellSouth Telecommunications, LLC, WITH THE EXCEPTION OF Workers' Compensation.
ACORD 101 (2008/01) © 2008 ACORD CORPORAT ION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
IL 10 (12/06) OLD REPUBLIC INSURANCE COMPANY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
NOTICE OF CANCELLATION TO CERTIFICATE HOLDERS
This endorsement modifies the notice of cancellation of insurance provided hereunder by adding the following:
A. In the event this policy is cancelled for any permissible reason, other than for nonpayment of premium, we shall endeavor to provide advance written notice of cancellation to certificate holders set out in the schedule on file with the Company, after notifying the first Named Insured of such cancellation. Notice of cancellation to certificate holders may be made by any commercially reasonable means, including mail, electronic mail, facsimile transmission or courier service.
B. This advance written notification of a cancellation of coverage is intended as a courtesy only. Our failure to provide such advance written notification will not extend the policy cancellation date, nor negate cancellation of the policy.
All other terms and conditions of this policy remain unchanged.
PIL 0291010
MWTB 21932 AT&T Inc. 06/01/2013 - 06/01/2014
IL 10 (12/06) OLD REPUBLIC INSURANCE COMPANY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
NOTICE OF CANCELLATION TO CERTIFICATE HOLDERS
This endorsement modifies the notice of cancellation of insurance provided hereunder by adding the following:
A. In the event this policy is cancelled for any permissible reason, other than for nonpayment of premium, we shall endeavor to provide advance written notice of cancellation to certificate holders set out in the schedule on file with the Company, after notifying the first Named Insured of such cancellation. Notice of cancellation to certificate holders may be made by any commercially reasonable means, including mail, electronic mail, facsimile transmission or courier service.
B. This advance written notification of a cancellation of coverage is intended as a courtesy only. Our failure to provide such advance written notification will not extend the policy cancellation date, nor negate cancellation of the policy.
All other terms and conditions of this policy remain unchanged.
PIL 029 10 10
MWZY60244 AT&T Inc. 06/01/2013 - 06/01/2014
IL 10 (12/06) OLD REPUBLIC INSURANCE COMPANY
WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE POLICY
NOTICE OF CANCELATION TO CERTIFICATE HOLDERS
This endorsement modifies the notice of cancelation of insurance provided hereunder by adding the following:
A. In the event this policy ls canceled for any permissible reason, other than for nonpayment of premium, we shall endeavor to provide advance written notice of cancelation to certificate holders set out in the schedule on file with the Company, after notifying the Insured first named in item 1 of the Information Page of such cancelation. Notice of cancelation to certificate holders may be made by any commercially reasonable means, including mail, electronic mail, facsimile transmission or courier service.
8. This advance written notification of a cancelation of coverage is intended as a courtesy only. Our failure to provide such advance written notification will not extend the policy cancelation date, nor negate cancelation of the policy.
All other terms and conditions of this policy remain unchanged.
PC 0101010
AT&T Services, Inc., and Affiliates MWC118473 00 Policy Term: 6-1-13 - 6-1-14
IL 10 (12/06) OLD REPUBLIC INSURANCE COMPANY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED WHERE REQUIRED
UNDER CONTRACT OR AGREEMENT
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
Paragraph 2. of SECTION II - WHO IS AN INSURED is amended to include any person or organization for whom you have agreed under contract or agreement to provide insurance. However, the insurance provided shall not exceed the scope of coverage or limits of this policy. Notwithstanding the foregoing sentence, in no event shall the insurance provided exceed the scope of coverage or limits required by said contract or agreement.
Where required by contract, we will consider our policy to be primary under any other insurance maintained by the additional insured for injury or damage covered by this endorsement and that their policy will be noncontributing with this insurance.
CA 739 003 0609
IIIWTB 21931 A TAT Inc. 06/01/1013 • 06/01,701'
ll 10 (12/06) OLD REPUBLIC INSURANCE COMPANY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
INSURANCE PRIMARY AS TO CERTAIN ADDITIONAL INSUREDS
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
SECTION IV - BUSINESS AUTO CONDITIONS, B. General Conditions, 5. Other Insurance, c. is amended by the addition of the following sentence:
The insurance afforded under this policy to an additional insured will apply as primary insurance for such additional insured where so required under an agreement executed prior to the date of accident. We will not ask any insurer that has issued other insurance to such additional insured to contribute to the settlement of •1oss• arising out of such accident. In no event shall the insurance provided exceed the scope of coverage or limits required by said contract or agreement.
All other terms and conditions remain unchanged.
CA .13\'l O 12 0600
MWTII 21931 ATUlm: ot,/Of/2013 -H/01.1201'
IL 10 (12/06) OLD REPUBLIC INSURANCE COMPANY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED AMENDMENT - PRIMARY AND NON-CONTRIBUTORY This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
As respects any person(s) or organization(s) included as an additional insured and with whom you have agreed in a written contract, agreement or permit to provide primary insurance on a non-contributory basis, this insurance will be primary to and non-contributing with any other insurance available to such person(s) or organization(s). In no event shall the insurance provided exceed the scope of coverage or limits required by sald contract or agreement.
GL 739 042 0612
IIWZ'flOJU
�11!!!1:M>'lll:lll13!;'1!1ZICFll!llil-lZIW:IDIZ11r..,.,._ ________ _ AT&Tlnc. NIV11201J • otl'Of/2014
IL 10 (12/06) OLD REPUBLIC INSURANCE COMPANY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED WHERE REQUIRED
UNDER CONTRACT OR AGREEMENT
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
Paragraph 2. of SECTION II - WHO IS AN INSURED is amended to include any person or organization for whom you have agreed under contract or agreement to provide insurance. Hov.(ever, the insurance provided shall not exceed the scope of coverage or limits of this policy. Notwithstanding the foregoing sentence, in no event shall the insurance provided exceed the scope of coverage or limits required by said contract or agreement.
Where required by contract, we will consider our policy to be primary under any other insurance maintained by the additional insured for injury or damage covered by this endorsement and that their policy will be noncontributing with this insurance.
GL 739 006a 0609
AIWlY 60244 AT&T me 06/01/WfJ - 06.'f'1n014
10 CITY COUNCIL STAFF REPORT
MEETING DATE: June 17, 2026
PREPARED BY:
Cynthia Iwanaga, Management Analyst
APPROVED BY: City Manager
AWARD ON-CALL PLUMBING MAINTENANCE SERVICE
AGREEMENTS
RECOMMENDATION(S)
1. Award maintenance service agreements to Burr Plumbing and Pumping, Inc. and Stephen Ciari Plumbing & Heating, Inc. in the not-to-exceed amount of $100,000 each to provide on-call plumbing maintenance and repair services; and
2. Authorize the City Manager to execute and administer said agreements.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Maintaining and Enhancing Infrastructure
Strategic Priorities 2026-2027
Fiscal Sustainability
REPORT NARRATIVE:
The purpose of this report is to provide the City Council with an opportunity to award agreements to two plumbing contractors for on-call plumbing services in the not-toexceed amount of $100,000 each during the initial two-year term and to authorize the City Manager to execute and administer the agreements.
The City has contracted for plumbing maintenance and repair services for many years on an on-call, as-needed basis as the City does not have the staffing resources to perform the work internally. All contractors are required to be licensed plumbing C-36 contractors by the California Contractors State Licensing Board (CSLB).
The City's current on-call plumbing agreements expire on June 30, 2026. The new agreements are proposed with an initial two-year term with authorization for the City Manager to execute three (3) consecutive one-year extensions, and the ability to increase the not-to-exceed amount to allow for annual price increases up to 5% of the prior year's pricing. The initial two-year term would be from July 1, 2026 to June 30, 2028.
10 A Request for Proposals (RFP) for on-call plumbing maintenance and repair services was released on March 30, 2026. In soliciting for proposals, the City advertised in the Morgan Hill Times on March 27, 2026. Bids were posted on the City website, Public Purchase online plan room service, and at four builders exchanges, including the Builders Exchange of Santa Clara County, San Francisco Builders Exchange, Bay Area Builders Exchange, and Central Coast Builders Association. Lastly, the RFP was posted on the Dodge and Data Analytics and the Bid Net websites, whose subscribers include contractors as well as national builders' exchanges. Contractors registered on the City's informal bidders' list with the required CSLB license C-36 (plumbing contractor) were also notified of the RFP opportunity via email. A non-mandatory pre-proposal virtual meeting was held on April 16, 2026.
Four proposals were received by the April 28, 2026 due date. A team of evaluators from the Public Services Department Maintenance Division independently evaluated and scored the proposals based on the contractors' narrative, which included qualifications, experience and references. The proposals were evaluated using a "Best Value" methodology in which contractors meeting the minimum threshold score of 30 out of 40 points in their Qualifications, Experience, and References narrative were then scored based upon their cost proposals. Of the four proposals submitted, three (3) scored the minimum 30 points to advance to the scoring of cost proposal pricing. Up to 60 points were available for cost proposals. A complete scoring summary is attached to this report (Attachment 1).
The recommended contractors were selected based on the total points scored by the three proposals that received 30 or more points for their qualifications and the corresponding points for their on-call plumbing maintenance services cost proposals.
Based upon the scoring criteria, Burr Plumbing and Pumping, Inc. scored the highest with 89.7 points and Stephen Ciari Plumbing & Heating, Inc. scored the second highest with 82.1 points. Below is a scoring summary of the three proposals:
Contractor Total Points
Burr Plumbing and Pumping, Inc. 89.7
Stephen Ciari Plumbing & Heating, Inc. 82.1
Silicon Valley Mechanical, Inc. 78.6
Burr Plumbing and Pumping, Inc. has been in business for over 25 years and has provided on-call plumbing services to the City of Morgan Hill since 2015. They have also provided plumbing services to other local jurisdictions including the County of Santa Clara, City of San Jose, City of Cupertino, and Valley Transportation Authority (VTA).
10 Stephen Ciari Plumbing & Heating, Inc. has been in business since 1972. In 2022, they completed a boiler replacement project at the Community and Cultural Center (CCC) and in 2023, they completed a second project at the CCC to replace a heat exchanger.
They have also provided plumbing services to other local jurisdictions, including the City of San Jose, County of Santa Clara Facilities & Fleet, and San Jose Unified School District.
Staff recommends entering into agreements with Burr Plumbing and Pumping, Inc. and Stephen Ciari Plumbing & Heating, Inc. to provide on-call plumbing services to City facilities in the amount of $100,000 each in the initial two-year term (Attachments 2 & 3).
The scope of work will include maintenance and repairs to be performed on an asneeded basis and pre-approved by City maintenance staff. Staff believes having an agreement with more than one plumbing contractor is necessary to ensure adequate coverage for on-call plumbing services and recommends awarding agreements to both firms.
The RFP document can be viewed via this link: Plumbing RFP COMMUNITY ENGAGEMENT:
Inform
As on-call plumbing maintenance and repair is a routine and standard service provided at City facilities, no community engagement was completed for these agreements. Staff will post signage informing the public of any plumbing maintenance repairs that affect the use of City facilities. If the plumbing repairs will occur over several days, a general notice will be posted on the City website and via social media channels informing residents of any disruptions to services at City facilities.
ALTERNATIVE ACTIONS:
An alternative action would be to approve an agreement with only one firm. Doing so would limit the City's options when repairs are needed and may result in a decrease in public services.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
Although the City Council has not previously taken action on these two agreements, the City Council has previously awarded on-call plumbing maintenance service agreements on November 11, 2015 and June 26, 2019.
FISCAL AND RESOURCE IMPACT:
If approved the total funding authorization for each agreement would be $100,000 in the initial two-year term. The total not-to-exceed amount in each agreement has been set at $100,000 to ensure the contract maximum amount does not restrict the City's capability to obtain needed repairs in a timely manner, and to limit service disruptions and public safety concerns. The City Manager would have authority to extend the agreements and increase the maximum compensation for three one-year terms, at a level that would allow for cost increases of up to 5% above the immediate prior year's pricing. The plumbing maintenance and repair costs are included in the building maintenance
10 budgets for City facilities and parks.
CEQA (California Environmental Quality Act):
Categorical Exemption
The activities described in this staff report are categorically exempt under CEQA, specifically pursuant to Section 15301 of the CEQA Guidelines (Existing Facilities), as the subject work involves the repair, maintenance or minor alteration of existing City facilities involving negligible or no expansion of use of those facilities.
City of Morgan Hill: 2026 On-Call Plumbing Maintenance RFP Scoring Matrix
NARRATIVE SCORING
1 2 3 4
NARRATIVE
Points
Available
Burr Plumbing
and Pumping
Century
Commercial
Service*
Ciari Plumbing
& Heating
Silicon Valley
Mechanical
15.0 14.3 10.0 10.3 10.7
10.0 9.3 7.0 7.7 8.7
Qualifications of Staff to be assigned to provide on-call plumbing services 5.0 4.3 2.7 4.0 3.0
10.0 8.7 5.7 8.7 8.7
SUBTOTAL- NARRATIVE POINTS 40.0 36.7 25.3 30.7 31.0
*Century Commercial did not score minimum 30 pts
COST PROPOSAL 1 2 3 4 COST PROPOSAL SCORING
Item
Price from Lowest
Bidder
Burr Plumbing
and Pumping
Century
Commercial
Service*
Ciari Plumbing &
Heating
Silicon Valley
Mechanical
Points
Available
Burr Plumbing
and Pumping
Century
Commercial
Service*
Ciari Plumbing
& Heating
Silicon Valley
Mechanical
Laborer Shop Rate 104.98 150.00 104.98 120.00 15.0 10.5 15.0 13.1 Apprentice Shop Rate 95.00 95.00 140.48 155.00 15.0 15.0 10.1 9.2 Journeyman Shop Rate 173.47 200.00 173.47 190.00 15.0 13.0 15.0 13.7 Laborer Overtime Rate 157.47 170.00 157.47 180.00 2.5 2.3 2.5 2.2 Apprentice Overtime Rate 105.00 105.00 210.72 232.50 2.5 2.5 1.2 1.1 Journeyman Overtime Rate 250.00 250.00 260.21 285.00 2.5 2.5 2.4 2.2 Laborer Rate -Sat, Sun, Hol 180.00 190.00 209.96 180.00 2.5 2.4 2.1 2.5 Apprentice Rate - Sat, Sun, Hol 105.00 105.00 280.96 232.50 2.5 2.5 0.9 1.1 Journeyman Rate- Sat, Sun, Hol 285.00 300.00 346.94 285.00 2.5 2.4 2.1 2.5 SUBTOTAL-PRICING POINTS 60.0 53.1 - 51.4 47.6
GRAND TOTAL 100.0 89.7 82.1 78.6
1 2 3
Assessment of Work Quality, Performance and Working Relationships with Clients that indicate high levels of satisfaction and effectiveness Previous Experience providing a superior level of on-call plumbing services at likesized facilities w/similar scopes of work Organized Communication Systems and reporting capabilities that demonstrate efficiency and effectiveness
Line Item point score is lowest bidder's rate divided by each Contractor's rate times the number of points available for that line item. For example, Burr Plumbing's Labor Shop Rate points = 104.38/150.00 X 15 points = 10.5 points
8.1.3. Workers' Compensation Insurance and Employer's Liability. SERVICE PROVIDER shall maintain Workers Compensation coverage, as required by law, in the minimum amount of: (i) one million dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater. If SERVICE PROVIDER is self-insured, SERVICE PROVIDER shall provide its Certificate of Permission to Self-Insure, duly authorized by the Department of Industrial Relations.
8.1.4. Pollution (Environmental) Liability. Because the performance of SERVICE PROVIDER'S work or service under this Agreement involves hazardous materials, contaminated soil disposal, and/or a risk of accidental release of fuel oil, chemicals or other toxic gases or hazardous materials, SERVICE PROVIDER shall procure and maintain Pollution Liability covering the SERVICE PROVIDER'S liability for bodily injury, property damage and environmental damage resulting from pollution and related cleanup costs arising out of the work or services to be performed under this Agreement. Coverage shall be provided for both work performed on site, as well as during the transport of hazardous materials. Such coverage shall be in the minimum amount of: (i) one million dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater.
8.1.5. Professional Liability.
8.1.5.1. If the performance of SERVICE PROVIDER'S work or service under this Agreement involves professional and/or technical services (examples include, but are not limited to, architects, engineers, land surveyors, and appraisers), SERVICE PROVIDER shall procure and maintain either a claims made or occurrence Errors and Omission liability insurance in the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater. Further, if SERVICE PROVIDER maintains a claims-made policy, SERVICE PROVIDER shall provide written evidence of such insurance to CITY for at least five (5) years after the completion of work performed under this Agreement.
8.1.5.2. If the performance of SERVICE PROVIDER'S work or service under this Agreement relates to Information Technology or related services (examples include, but are not limited to computer programmers, software designers, hardware engineers, or other systems consultants), SERVICE PROVIDER shall procure and maintain a claims made Errors and Omission liability insurance, including Cyber Liability and Data Breach, In the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER'S combined insurance policies (including any excess or "umbrella" policies), whichever is greater.
4 Updated: August 2024
11 CITY COUNCIL STAFF REPORT
MEETING DATE: June 17, 2026
PREPARED BY:
Dat Nguyen, Finance Director
APPROVED BY: City Manager
ADOPT RESOLUTION OF INTENTION AND INTRODUCTION OF
ORDINANCE TO AMEND THE CONTRACT BETWEEN THE BOARD OF
ADMINISTRATION OF THE CALIFORNIA PUBLIC EMPLOYEES’
RETIREMENT SYSTEM (CALPERS) AND THE CITY OF MORGAN HILL
TO PROVIDE FOR EMPLOYEES SHARING ADDITIONAL COSTS
UNDER GOVERNMENT CODE SECTION 20516 (EMPLOYEES
SHARING ADDITIONAL COSTS)
RECOMMENDATION(S)
1. Adopt Resolution of Intention of the City Council of the City of Morgan Hill stating its intent to amend the contract between the California Public Employees' Retirement System (CalPERS) and the City of Morgan Hill in order to provide for employees sharing additional cost under Government Code Section 20516 (Employees Sharing Additional Cost);
2. Open/close the public hearing;
3. Waive the first and second reading of the ordinance amending the City's contract with CalPERS; and
4. Introduce ordinance.
COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Fostering a Positive Organizational Culture
Preserving and Cultivating Public Trust
Strategic Priorities 2026-2027
Fiscal Sustainability
REPORT NARRATIVE:
In the most recent negotiations between the City and its represented labor units, the City Council approved a resolution for the Management, Professional, and Confidential employee group that includes provisions for employees to continue paying a reduced employee share of the employer's pension contribution. While the Council has already approved these provisions through the employee group resolution, approval of this pension contract amendment is an administrative step required by the California Public
11 Employees' Retirement System (CalPERS) for unrepresented employees to ensure the proper accounting and reporting of employee and employer contributions.
Similar to the American Federation of State, County and Municipal Employees (AFSCME) and Community Service Officers' Association (CSOA) bargaining units, the agreed-upon cost-sharing arrangement applies to all unrepresented employees, including both Classic and California Public Employees' Pension Reform Act (PEPRA) members, as well as both Safety and Miscellaneous classifications. The employee costsharing rate will be 1.12% effective with the payroll period beginning December 20, 2026.
The first step in the process is for the City Council to adopt a Resolution of Intention and conduct the first reading of the ordinance amending the City's contract with CalPERS.
An amendment to the contract that changes employee contribution rates requires a secret ballot election among the affected employees. This election must occur after adoption of the Resolution of Intention and before adoption of the final ordinance. The ordinance will return to the City Council for a second reading and adoption on August 19, 2026. The contract amendment will become effective 30 days after adoption of the ordinance and will apply beginning with the payroll period starting December 20, 2026.
Although the employee cost-sharing arrangement was previously approved by the City Council as part of the adopted management resolution on December 17, 2025, CalPERS requires this additional administrative action to formally amend the City's pension contract. The amendment will not change the employee cost-sharing rate; rather, it will ensure that employee contributions are properly credited by CalPERS and that the pension contract is consistent with the City's currently adopted compensation provisions.
COMMUNITY ENGAGEMENT:
Inform
Public notice was published in the local newspaper on June 5, 2026, informing the community of the proposed amendment of CalPERS contract.
ALTERNATIVE ACTIONS:
Not Applicable.
PRIOR CITY COUNCIL AND COMMISSION ACTIONS:
On December 17, 2025, the City Council approved the current Management, Professional, and Confidential Employees Resolution and corresponding salary schedules, which reduce employees’ sharing of the employer CalPERS contribution by
2.00% effective December 21, 2025, by an additional 3.00% effective December 20, 2026, and by a further 1.12% effective December 19, 2027.
FISCAL AND RESOURCE IMPACT:
The reduction in the employee sharing of the employer's CalPERS cost has been incorporated into the City budget.
11 CEQA (California Environmental Quality Act):
Not a Project
Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
RESOLUTION OF INTENTION
TO APPROVE AN AMENDMENT TO CONTRACT
BETWEEN THE
BOARD OF ADMINISTRATION
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
AND THE
CITY COUNCIL
CITY OF MORGAN HILL
WHEREAS, the Public Employees' Retirement Law permits the participation of public agencies and their employees in the Public Employees' Retirement System by the execution of a contract, and sets forth the procedure by which said public agencies may elect to subject themselves and their employees to amendments to said Law; and
WHEREAS, one of the steps in the procedures to amend this contract is the adoption by the governing body of the public agency of a resolution giving notice of its intention to approve an amendment to said contract, which resolution shall contain a summary of the change proposed in said contract; and WHEREAS, the following is a statement of the proposed change:
To provide Section 20516 (Employees Sharing Additional
Cost) of a reduction of 5% for local miscellaneous members in the Unrepresented Management group, and;
to provide 1.120% for classic local safety members in the Unrepresented Management Safety group.
NOW, THEREFORE, BE IT RESOLVED that the governing body of the above agency does hereby give notice of intention to approve an amendment to the contract between said public agency and the Board of Administration of the Public Employees' Retirement System, a copy of said amendment being attached hereto, as an "Exhibit" and by this reference made a part hereof.
By:_________________________________
Presiding Officer
_________________________________
Title
______________________
Date adopted and approved
(Amendment)
CON-302 (Rev. 4/96)
ORDINANCE NO. ______, NEW SERIES
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MORGAN HILL AUTHORIZING AN AMENDMENT TO THE
CONTRACT BETWEEN THE CITY OF MORGAN HILL AND
THE BOARD OF ADMINISTRATION OF THE CALIFORNIA
PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
THE CITY COUNCIL OF THE CITY OF MORGAN HILL, CALIFORNIA DOES ORDAIN AS FOLLOWS:
SECTION 1: That an amendment to the contract between the City of Morgan Hill and the Board of Administration, California Public Employees' Retirement System is hereby authorized, a copy of said amendment being attached hereto, marked Exhibit, and by such reference made a part hereof as though herein set out in full.
SECTION 2: The City Manager or his designee is authorized, empowered, and directed to execute said amendment for and on behalf of the City of Morgan Hill.
SECTION 3: Effective Date; Publication. This ordinance shall take effect thirty (30) days after the date of its passage and adoption. The City Clerk is hereby directed to publish in full or summary this ordinance pursuant to §36933 of the Government Code in a newspaper of general circulation in the City of Morgan Hill.
The foregoing ordinance was introduced and the title thereof read at a regular meeting of the City Council of the City of Morgan Hill held on the day of 2026, and was finally adopted at a regular meeting of said Council on the day of 2026, and said ordinance was duly passed and adopted in accordance with law.
PASSED AND ADOPTED by the City Council of Morgan Hill at the regular meeting held on the th day of ______, 2026 by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
APPROVED:
__________________________________
MARK TURNER, MAYOR
ATTEST: DATE:
City of Morgan Hill
Ordinance No. xxxx, New Series
________________________________ ______________________ MICHELLE BIGELOW, City Clerk
Effective:
CERTIFICATE OF THE CITY CLERK
I, Michelle Bigelow, City Clerk of the City of Morgan Hill, California, do hereby certify that the foregoing is a true and correct copy of Ordinance No. ____, New Series, adopted by the City Council of the City of Morgan Hill, California at the meeting held on this _____ day of _______________, 2026 and has been published pursuant to Government Code.
WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.
DATE:
Michelle Bigelow, City Clerk
EXHIBIT
California
Public Employees’ Retirement System
AMENDMENT TO CONTRACT Between the
Board of Administration
California Public Employees’ Retirement System
and the
City Council
City of Morgan Hill
The Board of Administration, California Public Employees' Retirement System, hereinafter referred to as Board, and the governing body of the above public agency, hereinafter referred to as Public Agency, having entered into a contract effective March 1, 1964, and witnessed January 8, 1964, and as amended effective June 1, 1972, May 1, 1976, January 1, 1977, December 17, 1981, August 1, 1982, August 16, 1983, July 1, 1988, January 7, 1990, April 29, 1990, August 17, 1991, June 21, 1997, April 17, 1999, February 20, 2000, July 1, 2002, June 18, 2006, April 19, 2000, June 26, 2022, and May 25, 2024, which provides for participation of Public Agency in said System, Board and Public Agency hereby agree as follows:
A. Paragraphs 1 through 17 are hereby stricken from said contract as executed, effective May 25, 2024, and hereby replaced by the following paragraphs numbered 1 through 17 inclusive:
1. All words and terms used herein which are defined in the Public Employees' Retirement Law shall have the meaning as defined therein unless otherwise specifically provided. "Normal retirement age” shall mean age shall mean age 55 for classic local miscellaneous members, age 62 for new local miscellaneous members, age 50 for classic local safety members, and age 57 for new local safety members.
2. Public Agency shall participate in the Public Employees' Retirement System from and after March 1, 1964, making its employees as hereinafter provided, members of said System subject to all provisions of the Public Employees' Retirement Law except such as apply only on election of a contracting agency and are not provided for herein and to all amendments to said Law hereafter enacted except those, which by express provisions thereof, apply only on the election of a contracting agency.
3. Public Agency agrees to indemnify, defend and hold harmless the California Public Employees’ Retirement System (CalPERS) and its trustees, agents and employees, the CalPERS Board of Administration, and the California Public Employees’ Retirement Fund from any claims, demands, actions, losses, liabilities, damages, judgments, expenses and costs, including but not limited to interest, penalties and attorney fees that may arise as a result of any of the following:
(a) Public Agency’s election to provide retirement benefits, provisions or formulas under this Contract that are different than the retirement benefits, provisions or formulas provided under the Public Agency’s prior non-CalPERS retirement program. (b) Any dispute, disagreement, claim, or proceeding (including without limitation arbitration, administrative hearing, or litigation) between Public Agency and its employees (or their
representatives) which relates to Public Agency’s election to amend this Contract to provide retirement benefits, provisions or formulas that are different than such employees’ existing retirement benefits, provisions or formulas.
(c) Public Agency’s agreement with a third party other than CalPERS to provide retirement benefits, provisions, or formulas that are different than the retirement benefits, provisions or formulas provided under this Contract and provided for under the California Public Employees’ Retirement Law.
4. Employees of Public Agency in the following classes shall become members of said Retirement System except such in each such class as are excluded by law or this agreement:
a. Local Fire Fighters (herein referred to as local safety members); b. Local Police Officers (herein referred to as local safety members);
c. Employees other than local safety members (herein referred to as local miscellaneous members).
5. In addition to the classes of employees excluded from membership by said Retirement Law, the following classes of employees shall not become members of said Retirement System:
NO ADDITIONAL EXCLUSIONS
6. The percentage of final compensation to be provided for each year of credited prior and current service for classic local miscellaneous members in employment before and not on or after June 18, 2006, shall be determined in accordance with Section 21354 of said Retirement Law, subject to the reduction provided therein for service prior to September 30, 1975, termination of Social Security, for members whose service has been included in Federal Social Security (2% at age 55 Full and Modified).
7. The percentage of final compensation to be provided for each year of credited prior and current service for classic local miscellaneous members in employment on or after June 18, 2006, shall be determined in accordance with Section 21354.4 of said Retirement Law, subject to the reduction provided therein for service prior to September 30, 1975, termination of Social Security, for members whose service has been included in Federal Social Security (2.5% at age 55 Full and Modified).
8. The percentage of final compensation to be provided for each year of credited prior and current service as a new local miscellaneous member shall be determined in accordance with Section 7522.20 of said Retirement Law (2% at age 62 Full and Modified).
9. The percentage of final compensation to be provided for each year of credited prior and current service as a classic local fire member shall be determined in accordance with Section 21362 of said Retirement Law (2% at age 50 Full).
10. The percentage of final compensation to be provided for each year of credited prior and current service as a classic local police member shall be determined in accordance with Section 21362.2 of said Retirement Law (3% at age 50 Full).
11. The percentage of final compensation to be provided for each year of credited prior and current service as a new local safety member shall be determined in accordance with Section 7522.25(d) of said Retirement Law (2.7% at age 57 Full).
12. Public Agency elected and elects to be subject to the following optional provisions:
a. Section 21574 (Fourth Level of 1959 Survivor Benefits). b. Section 20903 (Two Years Additional Service Credit) for local miscellaneous members only.
c. Section 20042 (One-Year Final Compensation) for classic members only.
d. Section 20965 (Credit for Unused Sick Leave).
e. Section 21024 (Military Service Credit as Public Service) for local miscellaneous members and local police members.
f. Section 20516 (Employees Sharing Additional Cost):
From and after April 19, 2020, 3.604% for local miscellaneous members in the Morgan Hill Police Officers’ Association, Community Service Officers’ Association and American Federation of State, County, and Municipal Employees; 6.120% for classic local safety members in the Morgan Hill Police Officers’ Association; and 1.329% for new local safety members in the Morgan Hill Police Officers’ Association.
From and after April 19, 2020, and until June 26, 2022, 3.604% for local miscellaneous members in the Unrepresented Management group.
From and after June 26, 2022, and until the effective date of this amendment to contract 6.12% for local miscellaneous members in the Unrepresented Management group.
From and after the effective date of this amendment to contract,
1.12% for local miscellaneous members in the Unrepresented Management group.
From and after the effective date of this amendment to contract,
1.12% for classic local safety members in the Unrepresented Management Safety group.
The portion of the employer’s contribution that the member agrees to contribute from his or her compensation, over and above the member’s normal contribution (“Cost Sharing Percentage”), shall not exceed the Employer Normal Cost Rate, as that rate is defined in the CalPERS Actuarial Valuation for the relevant fiscal year. If the Cost Sharing Percentage will exceed the relevant Employer Normal Cost Rate, the Cost Sharing Percentage shall automatically be reduced to an amount equal to, and not to exceed, the Employer Normal Cost Rate for the relevant fiscal year.
13. Public Agency, in accordance with Government Code Section 20790, ceased to be an "employer" for purposes of Section 20834 effective on August 16, 1983. Accumulated contributions of Public Agency shall be fixed and determined as provided in Government Code Section 20834, and accumulated contributions thereafter shall be held by the Board as provided in Government Code Section 20834.
14. Public Agency shall contribute to said Retirement System the contributions determined by actuarial valuations of prior and future service liability with respect to local miscellaneous members and local safety members of said Retirement System.
15. Public Agency shall also contribute to said Retirement System as follows:
a. A reasonable amount, as fixed by the Board, payable in one installment within 60 days of date of contract to cover the costs of administering said System as it affects the employees of Public Agency, not including the costs of special valuations or of the periodic investigation and valuations required by law.
b. A reasonable amount, as fixed by the Board, payable in one installment as the occasions arise, to cover the costs of special valuations on account of employees of Public Agency, and costs of the periodic investigation and valuations required by law.
16. Contributions required of Public Agency and its employees shall be subject to adjustment by Board on account of amendments to the Public Employees' Retirement Law, and on account of the experience under the Retirement System as determined by the periodic investigation and valuation required by said Retirement Law.
17. Contributions required of Public Agency and its employees shall be paid by Public Agency to the Retirement System within fifteen days after the end of the period to which said contributions refer or as may be prescribed by Board regulation. If more or less than the correct amount of contributions is paid for any period, proper adjustment shall be made in connection with subsequent remittances. Adjustments on account of errors in contributions required of any employee may be made by direct payments between the employee and the Board.
B. This amendment shall be effective on the _____ day of _______________, ______.
BOARD OF ADMINISTRATION CITY COUNCIL
PUBLIC EMPLOYEES’ RETIREMENT SYSTEM CITY OF MORGAN HILL BY____________________________________ BY______________________________
MELODY BENAVIDES, CHIEF PRESIDING OFFICER
PENSION CONTRACTS AND PREFUNDING
PROGRAMS DIVISION
PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
________________________________
Witness Date
Attest:
________________________________
Clerk
AMENDMENT CalPERS ID #3509384723
PERS-CON-702A