____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: _______________________
Disposition: ___________________________
Agenda Item No: 2.i
Meeting Date: May 18, 2026
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Public Works
Prepared by: April Miller,
Director of Public Works
City Manager Approval: ______________
TOPIC: MARIN EMERGENCY RADIO AUTHORITY
SUBJECT: RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A SECOND
AMENDMENT TO THE COMMUNICATIONS SITE LICENSE AGREEMENT WITH THE
MARIN EMERGENCY RADIO AUTHORITY (MERA)
RECOMMENDATION:
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute a second amendment to the Communications Site License Agreement (“Agreement”) with the Marin Emergency Radio Authority (MERA).
BACKGROUND:
MERA is a countywide radio communications system that provides integrated communications across Marin County. In February 2001, the City Council approved entering into the Agreement with MERA permitting the installation of telecommunications facilities on City property atop Dollar Hill. The approval included the issuance of a 1) Environmental and Design Review Permit (ED00-53) and 2) Use Permit (UP00-43), subject to conditions. The installation included upgrading the existing 16 communication sites to MERA’s Next Generation Radio Communication System.
In March 2020, the City Council approved the execution of the first amendment to the Agreement with MERA, allowing upgrades to its radio communications system. The upgrades included improved capabilities during daily service and critical emergencies. The approval also included the integration of new sites where public and private telecommunications facilities already existed. Telecommunication facility infrastructure included towers, microwave dishes, antennas, a radio shelter, and emergency power generators.
ANALYSIS:
The proposed request is for consideration of the second amendment to the Agreement with MERA to allow changes to its terms and conditions. Specifically, the proposed amendment would modify the Agreement’s Section 3 ”Commencement Date and Term”.
The original Agreement was approved on February 5, 2001, noting the Agreement would continue for a period of five years (2006), with options to extend. Since that time, the Agreement has been extended for four (4) additional five (5) year terms to 2026 as permitted under the Agreement. Section 3, Paragraph SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
A of the proposed second amendment establishes the Agreement's “original term” from February 5, 2001, through February 1, 2031.
No other substantive changes are proposed in the second amendment to the Agreement with MERA.
Under the second amendment and subject to conditions specified therein, the Licensee (MERA) retains the right to extend the Agreement for four (4) additional five (5) year terms.
Staff recommends that the City Council approve the resolution and authorize the City Manager to execute the second amendment to the Agreement with MERA for emergency communications service.
FISCAL IMPACT:
There is no fiscal impact associated with this item.
OPTIONS:
The City Council has the following options to consider relating to this matter:
1. Adopt a resolution authorizing the City Manager to execute a second amendment to the Site Communications Site License Agreement with MERA.
2. Do not adopt the resolution and provide direction to staff.
RECOMMENDED ACTION:
Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute a second amendment to the Communications Site License Agreement (“Agreement”) with the Marin Emergency Radio Authority (MERA).
ATTACHMENTS:
1. Resolution
2. Exhibit 1 to Resolution: Second Amendment to the Agreement
3. First Amendment to the Agreement
4. Original Agreement
RESOLUTION NO.
A RESOLUTION OF THE SAN RAFAEL CITY COUNCIL APPROVING AND AUTHORIZING
THE CITY MANAGER TO EXECUTE A SECOND AMENDMENT TO THE COMMUNICATIONS
SITE LICENSE AGREEMENT WITH THE MARIN EMERGENCY RADIO AUTHORITY (MERA)
ALLOWING MODIFICATIONS TO THE TERMS AND CONDITIONS TO EXTEND OF THE
AGREEMENT
WHEREAS, the City of San Rafael (“City”) is the owner of certain property known as Mountain Park Reservation located on Dollar Hill (“City Property”); and WHEREAS, on February 5, 2001, the City Council adopted Resolution No. 10764, which authorized execution of a Communications Site License Agreement permitting the Marin Emergency Radio Authority (MERA) to install its telecommunications facilities on the City Property, consistent with the approved Environmental and Design Review Permit (ED00-53) and Use Permit (UP00-43); and
WHEREAS, the City and MERA desire to modify Section 3 Terms and Conditions to extend the Agreement;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
1. The City Council hereby approves and authorizes the City Manager to execute a second amendment to the Communications Site License Agreement with MERA, allowing modifications to Section 3 Terms and Conditions to extend the Agreement, in the form attached hereto as Exhibit 1 and incorporated herein by reference, subject to final approval as to form by the City Attorney.
2. The Director of Public Works is hereby authorized to take any and all such actions and make changes as may be necessary to accomplish the purpose of this resolution.
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on Monday, the 18th day of May 2026, by the following vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
___ __
LINDSAY LARA, City Clerk
12485-0001\3219064v1.doc
SECOND AMENDMENT TO COMMUNICATION SITE LICENSE AGREEMENT
THIS SECOND AMENDMENT TO COMMUNICATION SITE LICENSE AGREEMENT (“Second Amendment”) is dated as of _______________, 2026 (the “Effective Date”), and is entered into by and between the CITY OF SAN RAFAEL, a municipal corporation (“Licensor”), and the MARIN EMERGENCY RADIO AUTHORITY, a joint powers authority (“Licensee”).
R E C I T A L S
A. Licensor and Licensee entered into that certain Communications Site License Agreement dated February 5, 2001 (“License”) as amended by the First Amendment to Communication Site License Agreement dated April 29, 2020 (“First Amendment”), affecting a portion of the Property identified in Exhibit A of the License.
B. Licensor and Licensee now desire to amend the License to extend the term of the License.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals, and the covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee hereby agree as follows:
1. Amendment. Section 3 (Term and Option to Extend) of the License is hereby amended in its entirety to read as follows:
A. Commencement Date and Term. The term of this Agreement shall commence on February 5, 2001, and shall continue until February 1, 2031 (“Original Term”).
B. Extension of Agreement. Licensee shall have the right to extend the Original Term for four (4) additional five (5) year terms, subject to all of the provisions of the License, and all amendments to the License, provided Licensee is not in default of the License at the time it seeks to exercise the right to extend. Licensee shall notify Licensor in writing of its intention to exercise its extension rights at least sixty (60) days prior to expiration of the term.
2. Entire Agreement. This Second Amendment constitutes the entire agreement between Licensor and Licensee with respect to the subject matter hereof.
3. Conflict. In the event of a conflict or inconsistency between the terms and conditions of the License, the terms of the First Amendment, and the terms and conditions of this Second Amendment, the terms and conditions of this Second Amendment shall prevail and control.
4. Continuing Effect. Except as specifically modified hereby, the License and First Amendment shall remain unaffected and unchanged. The License and First Amendment is hereby ratified and affirmed by Licensor and Licensee and remains in full force and effect as modified hereby.
12485-0001\3219064v1.doc
5. Counterparts. This Second Amendment may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument.
6. Authority. The person signing this Second Amendment on behalf of each party hereby represents and warrants that they are duly authorized to execute this Second Amendment on behalf of that party.
IN WITNESS WHEREOF, Licensor and Licensee have executed this Second Amendment as of the date and year first above written.
LICENSOR: CITY OF SAN RAFAEL
By:
ATTEST:
_________________________________
Lindsay Lara, City Clerk
APPROVED AS TO FORM:
_________________________________
LICENSEE: MARIN EMERGENCY RADIO
AUTHORITY
By:
Heather Tannehill-Plamondon,
Executive Director
APPROVED AS TO FORM:
_________________________________
Trisha Ortiz, MERA General Counsel
EXHIBIT 1
FIRST AMENDMENT TO COMMUNICATIONS SITE LICENSE AGREEMENT /1, This irst Amendment to Communications Site License Agreement is entered into on thi~ day of ~~'..L.4-· _ _ , 2020, by and between the City of San Rafael (the "City" or "Licensor") and the Marin ergency Radio Authority ("MERA" or "Licensee").
WHEREAS, the City and MERA entered into that certain Communications Site License Agreement ("Agreement") to provide, in part, space for a communications site located on City-owned property described in Paragraph I of the Agreement; and
WHEREAS, the parties desire to amend the Agreement to authorize Licensee to update its radio communication system as described below.
NOW, THEREFORE, the parties hereto agree, in consideration of the mutual covenants and obligations, to the terms and conditions hereinafter set forth as follows:
I. The first sentence of Paragraph 2 of the Agreement shall be amended to read as follows:
"The City grants to MERA, subject to the rights and privileges of current tenants and other grantees, the right and privilege to use the License Space for the sole purpose of constructing, maintaining, securing and operating a public safety, fire protection and emergency radio system, including, the transmission and reception of radio communication signals on various frequencies (between 769 MHz and 77S MHz and in the 6 GHz spectrum for microwave transmissions), in conformance with the approved site plans and related drawings on file with the City Community Development Department, and subject to the terms and conditions of approval contained in Resolution No. I 0763 approving Environmental and Design Review Permit ED00-53 and Use Permit UP00-43 (collectively the "MERA Communication Facilities")."
2. Paragraph 8 of the Agreement shall be amended to read as follows:
"All notices or demands are deemed to be given or made when delivered in person or delivered by certified or registered mail, return receipt requested, postage prepaid United States mail, or by facsimile, and addressed to the respective parties as follows:
CITY:
MERA:
City Manager
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 9490 I
Fax:415-459-2242
Phone: 415-485-3070
And with respect to insurance issues:
City Risk Manager
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 9490 I
Fax:415-499-5296
Phone: 415-485-3069
Marin Emergency Radio Authority
c/o Town of Corte Madera
300 Tamalpais Drive
Corte Madera, CA 94925
Attention: Executive Officer
The address to which any notice or demand may be given to either party may be changed by written notice."
3. All other terms and conditions of the Agreement shall remain in effect.
IN WITNESS THEREOF, the parties have executed this Amendment as of the date first written above.
LICENSOR:
CITY OF SAN RAFAEL APPROVED AS TO FORM:
L a M& ~, vn (lFC: City Attorney
Date: _ i ~ 7J_1-_ 2{) _ ?Q __
ATTEST:
City Clerk
LICENSEE:
MARIN EMERGENCY RADIO AUTHORITY APPROVED AS TO FORM:
CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: Public Works
Project Manager: Bill Guerin Extension: 3110
Contractor Name: Marin Emergency Radio Authority
Contractor's Contact: Contact's Email:
0 FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER
DEPARTMENT DATE Check/Initial
1 Project Manager a. Email PINS Introductory Notice to Contractor < 'li--:k !ic1c t" □ l.'!llCr cl doll\.'.
b. Email contract (in Word) and attachments to City 4/23/2020 Attorney c/o [email protected] jg! IK 2 City Attorney a. Review, revise, and comment on draft agreement Ii:!. !1' ~: l) and return to Project Manager ~ ;•,, ~'.llJ~-ll . 1
113- -- b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor LI l ' I - ~ k &. ~ 3 Department Director Approval of final agreement form to send to ( I"- J l I' '·T (] -- contractor [!I Ll1 1
L'l cl
.Lit,
4 Project Manager Forward three (3) originals of final agreement to I k r· ,r: r □ contractor for their signature .:: 'l l -l I 3 t<::
s Project Manager When necessary, contractor-signed agreement □ N/A agendized for City Council approval •
*City Council approval required for Professional Services □ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 l
Date of City Council approval • r J , Jr
PRINT CONTINUE ROUTING PROCESS WITH HARO COPY
6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form
7 City Attorney Review and approve hard copy of signed
agreement ~-1i 1. t/ /QE, zo Q\- - 8 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) L/ /2~ 111)20 ~#1/
9 City Manager/ Mayor Agreement executed by City Council authorized L{ /21/?AZU ~ - official - ---
o~'Jo~ !JW¼'-r 10 City Clerk Attest signatures, retains original agreement and ---- forwards copies to Project Manager u
I I
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COMMUNICATIONS SITE LICENSE AGREEMENT
This Communications Site License Agreement ("Agreement") is entered into the 5 th day of February, 2001 by and between the City of San Rafael, a municipal corporation ("the City " or "Licensor"), and the Marin Emergency Radio Authority ("MERA" or "Licensee").
WHEREAS, MERA is a joint exercise of powers authority duly organized and operating pursuant to Article 1 (commencing with Section 6500) of Chapter 5, Division 7, Title 1 of the California Government Code, and pursuant to the Joint Powers Agreement, dated February 28, 1998 by and among the members (the "JPA"); and WHEREAS, MERA's purpose is to plan, finance, implement, manage, own and operate a multi-jurisdictional and County-wide public safety and emergency radio system (the "Project"); and
WHEREAS, the City is a Member of the JP A; and
WHEREAS, the City and MERA desire to enter into a License Agreement to provide, in part, space for locating a communications site that will become a part of the Project and be located on City owned property described below; and WHEREAS, the City Council of the City adopted Resolution No. 10763 on January 22, 2001, approving an Environmental and Design Review Permit (ED00-53) and a Use Permit (UP00-43) for the MERA Communication Facilities described below.
NOW, THEREFORE the parties hereto agree, in consideration of the mutual covenants and obligations, to the terms and conditions hereinafter set forth as follows:
1. Licensed Property.
The City is the owner of that certain real property located within the City of San Rafael, County of Marin, State of California, commonly known as "Mountain Park Reservation", also identified as Assessor's Parcel No. 011-051-02, and more particularly described in Exhibit "A" hereto ("the Property"). The parties hereto acknowledge that other licenses, leases or easements for communication and other purposes may currently exist on the Property. The City hereby Licenses to MERA and MERA hereby Licenses from the City, space on that portion of the Property depicted in Exhibit "B", together with the easements described hereinafter in paragraph 5 (the "License Space"). The City and MERA hereby agree that the License Space may be surveyed by a licensed surveyor at the sole cost of MERA, and that such survey shall then supplement Exhibit B, and become a part hereof and shall control to describe the License Space in the event of any discrepancy between such survey and the description of the License Space as contained herein. The License granted herein is subject to the terms, covenants, and conditions ATTACHMENT "A"
1 OP
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hereinafter set forth, and Licensee covenants, as a material part of this license, to keep and perform each and every term, covenant and condition of this License Agreement.
2. Use.
The City grants to MERA, subject to the rights and privileges of current tenants and other grantees, the right and privilege to use the License Space for the sole purpose of constructing, maintaining, securing and operating a public safety, fire protection and emergency radio system, including, the transmission and reception of radio communication signals on various frequencies (between 482.3500 MHz and 488.7000 MHz and in the 11.2 GHz spectrum for microwave transmissions), in conformance with the approved site plans and related drawings on file with the City Community Development Department, and subject to the terms and conditions of approval contained in Resolution No. 10763 approving Environmental and Design Review Permit ED00-53 and Use Permit UP00-43 (collectively the "MERA Communication Facilities"). The City further agrees not to hereafter grant a right to any other party for use of the Property or permit any other party to use the Property if such use would in any way adversely affect or interfere with MERA's use of the License Space, or adversely interfere with the MERA Communication Facilities, except for any uses by City or other parties now existing on the Property. This License Agreement is subject to Licensee obtaining all governmental licenses, permits and approvals required by federal, state or local governmental agencies, enabling MERA to construct and operate the MERA Communication Facilities in the License Space as described herein. The City agrees to cooperate with MERA, at MERA's expense, in making application for and obtaining all licenses, permits and any and all other necessary approvals that may be required for MERA's intended use of the License Space. The MERA Communication Facilities may be modified only upon written approval of the City, and obtaining any necessary City and other governmental permits. Construction, operation, and maintenance of the MERA Communication Facilities shall be at MERA's sole expense. MERA shall keep the License Space free from hazards or risk to public health, safety or welfare.
3. Term and Option to Extend.
A. Commencement Date and Term. The term of this Agreement shall commence on the day first hereinabove written and shall continue for a period of five (5) years thereafter.
B. Extension of Agreement. MERA shall have the right to extend the term hereof for four (4) additional five (5) year periods, subject to all of the provisions of this Agreement, provided MERA is not in default hereunder at the time it seeks to exercise the right to extend. MERA shall notify City in writing of its intention to exercise extension rights at least sixty (60) days prior to expiration of the term. 2 ( (
4. License Fee Payments.
Based upon (i) MERA's status as a Jomt powers authority dedicated to the furtherance and enhancement of the public safety communications system in Marin County, (ii) the City's status as a member of the IPA, and (iii) use of the MERA Communications Facilities for those same public safety purposes, the City has agreed to waive the license fees (normally required for any License Space) under this Agreement.
If at any time hereafter, the City ceases to be a member of the JPA, MERA agrees to pay to the City a market rate License fee which shall be agreed to by the parties, in the absence of which agreement the License fee shall be determined by an appraiser mutually agreeable to the parties.
5. Access and Utility Easements.
A. MERA is hereby given a right-of-way, subject to the limitations, restrictions, covenants, conditions, leases, licenses and easements of record, for ingress and egress to the License Space over, upon, and across the existing unimproved roadway known as Robert Dollar Drive located on the Property and the City's adjacent Boyd Park Property, from the gate adjacent to the improved public roadway known as Robert Dollar Drive, for the erection, installation, maintenance, replacement and removal of MERA's Facilities (the "Access Easement"). MERA also shall have a temporary right of access to the License Space over the existing paved portion of the roadway know as Robert Dollar Drive located on the Property, from the gate adjacent to Chula Vista Drive, when the access across the unimproved portion of Robert Dollar Drive connected to the public roadway known as Robert Dollar Drive is impassable as provided in the Second Addendum attached as Exhibit 2-A to Resolution No. 10763. MERA shall have the right to improve the Access Easement where necessary for its required uses upon written approval of the City, and obtaining any necessary City permits or other governmental approvals.
B. MERA shall have the right to enter the Property for the purpose of making necessary inspections and engineering surveys, and other tests reasonably necessary to determine the suitability of the License Space for MERA's Communication Facilities and for the purposes of preparing for the construction of the MERA Communication Facilities. MERA shall repair any damage to the Property caused by any tests performed and shall return the Property to the condition that existed prior to any tests.
C. MERA shall have access 24-hour\seven days-a-week to the Property for construction, installation, maintenance and repair of the License Space. MERA shall cooperate with, and adhere to, the City's access and security rules designed to promote the security and integrity of the Property wherein the License Space is located; however, the City agrees not to unreasonably restrict entry to the License Space by authorized MERA employees, agents, contractors and sub-contractors.
D. In the event of an emergency that requires the City to conduct emergency repair work within, at, or near the License Space or MERA's antennas, the City agrees to 3 {
notify MERA immediately and engage MERA personnel in support of the emergency effort.
E. MERA shall pay one-half of the City's initial costs for improving the access to the License Space across the unimproved portion of the roadway known as Robert Dollar Drive, and shall annually thereafter pay one half of the City's annual costs for maintaining, repairing, restoring and improving the roadway access to the License Space. MERA shall pay the City within 60 days of the City's billing for such costs.
6. Utilities at MERA's Cost.
MERA shall be solely responsible for and promptly pay all charges for propane, gas, electricity, telephone service, or any other utility used or consumed by MERA on the License Space. MERA shall have an electrical current meter installed on the Property to service the License Space and the cost of such meter and of such installation, maintenance, and repair shall be paid for by MERA.
7. Holding Over.
Should MERA, with the City's written consent, continue to utilize the License Space or any portion thereof after the expiration of the last five (5) year term, MERA shall continue to do so subject to all terms and conditions of this Agreement.
8. Notice.
All notices or demands are deemed to be given or made when delivered in person or delivered by certified or registered mail, return receipt requested, postage prepaid United States mail, or by facsimile, and addressed to the respective parties as follows:
CITY: City Manager
City of San Rafael
1400 Fifth Avenue
P.O. Box 151560
San Rafael, CA 94915-1560
Fax: 415-459-2242
Phone: 415-485-3070
And with respect to insurance issues:
City Risk Manager
City of San Rafael
1400 Fifth A venue
P.O. Box 151560
San Rafael, CA 94915-1560
Fax: 415-499-5296
Phone: 415-485-3069
4 MERA:
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Marin Emergency Radio Authority
c/o Marin County Department of Public Works
P.O. Box 4186
San Rafael, CA 94913-4186
Attention: Executive Officer
Fax: 415-499-3799
Phone: 415-499-6570
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The address to which any notice or demand may be given to either party may be changed by written notice.
9. Indemnification.
With respect to the Property and except for the gross negligence or willful misconduct of the City or its agents, employees or contractors, MERA shall defend, indemnify, release, and hold harmless the City, its officers, agents, employees, and volunteers, from any and all claims, obligations, liabilities, costs, demands, damages, expenses, suits or causes of action, judgments, or losses, including costs and reasonable attorneys' fees, which may arise out of the access, use, or occupancy of the Property by MERA, or MERA's officers, contractors, licensees, agents, employees, guests, invitees, or visitors in or about the License Space. The City shall not be liable for any loss or damage to persons or property sustained by MERA or other persons, which may be caused by theft, or by any act or neglect of any other licensee, tenant or occupant of the Property, or by any Third Parties. The indemnity obligations hereunder survive the termination of this Agreement.
MERA shall defend, indemnify, release, and hold harmless the City, its officers, agents, employees, and volunteers, from any loss, liability or damage arising from any claim, action or proceeding seeking to attack, set aside, void or annul the City's approval of MERA's use of the Property pursuant to this License Agreement and any other City permits or approvals related thereto, including the City's adoption of Resolution No. 10763, and the approval ofED00-53 and UP00-53.
10. Possessory Interest; Taxes.
MERA shall pay all personal property taxes, real property taxes, fees and assessments which may at any time be imposed or levied by any public entity and attributable to MERA's use of the License Space as authorized herein. City hereby gives notice to MERA, pursuant to Revenue and Tax Code Section 107 .6, that this License Agreement may create a possessory interest which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of MERA. 5 ( (
11. MERA's Right to Terminate.
MERA shall have the right to terminate this Agreement at any time upon the occurrence of any of the following events:
A. Upon providing the City six (6) months advance written notice.
B. Upon revocation, expiration or termination of necessary approvals of any agency, board, court or other governmental authority or third party for the construction and/or operation of the facilities or access thereto or if MERA reasonably determines the cost of obtaining such approval is unfeasible.
C. If MERA reasonably determines that the License Space is not appropriate under MERA's design or engineering specifications for its operation or that of the public safety and emergency radio system to which the facility belongs.
12. City's Right to Terminate.
City shall have the right to terminate this Agreement at any time upon the occurrence of any of the following:
A. Failure by MERA to comply with any material term, covenant or condition of this Agreement, if such failure is not cured to the reasonable satisfaction of City thirty (30) days after written notice thereof to MERA.
B. Upon providing MERA twenty four (24) months advance written notice.
13. Insurance.
A. During the term of this Agreement, MERA shall maintain, at no expense to City, the following insurance policies:
1. A comprehensive general liability insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury, or property damage.
2. An automobile liability (owned, non-owned, and hired vehicles) msurance policy m the minimum amount of one million ($1,000,000) dollars per occurrence.
B. The insurance coverage required of MERA by Paragraph 13. A., shall also meet the following requirements:
1. The insurance shall be primary with respect to any insurance or coverage maintained by City and shall not call upon City insurance or coverage for any contribution.
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2. The insurance policies shall be endorsed for contractual liability and personal injury.
3. The insurance policies shall be specifically endorsed to include the City, its officers, agents, employees, and volunteers, as additionally named insureds under the policies.
4. MERA shall provide to City's Risk Manager, (a) Certificates of Insurance evidencing the insurance coverage required herein, and (b) specific endorsements naming City, its officers, agents, employees, and volunteers, as additional named insureds under the policies.
5. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon thirty (30) days written notice to City's Risk Manager.
6. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years.
7. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement.
8. The insurance shall be approved as to form and sufficiency by the City's Risk Manager and the City Attorney.
C. If it employs any person, MERA shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both Licensee and City against all liability for injuries to MERA's officers and employees.
D. Any deductibles or self-insured retentions in MERA's insurance policies must be declared to and approved by the City's Risk Manager and the City Attorney. At City's option, the deductibles or self-insured retentions with respect to City shall be reduced or eliminated to City's satisfaction, or MERA shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses.
14. Fixtures.
The City agrees that no part of the improvements constructed, erected or placed by MERA on the License Space shall be considered as being fixed to or a part of the City's real property, it being the specific intention of the City to agree that the MERA Communications Facilities erected or placed by MERA on the License Space shall be and remain the property of MERA. At the expiration or termination of this Agreement, 7 ( (
MERA shall remove, at its sole expense, from the License Space any and all fixtures and improvements of every kind constructed and erected thereon.
15. Assignment.
MERA shall not voluntarily or by operation of law assign, transfer, license, or otherwise transfer or encumber all or any part of its interest in this Agreement without the City's prior written consent. Notwithstanding the foregoing, MERA shall have the right to assign this Agreement, or license the License Space to any governmental entity that it controls, is controlled by, or is under common control with MERA, or to any governmental entity resulting from merger or consolidation with MERA, provided that such assignee assumes in full all ofMERA's obligations under the Agreement and City is a full member of such assigned governmental entity.
16. Hazardous Materials.
MERA understands that the City has undertaken no internal investigation of its files, examination of its employees or testing of the License Space with respect to whether or not the License Space has been used for the generation, storage, treatment or disposal of hazardous materials ( as defined in "16 A through 16 E" below) and with the qualification the City represents that it has no present knowledge that the License Space has been so used in connection with hazardous materials.
MERA shall not use, store, or bring onto the Property or License Space, any hazardous materials except in accordance with all federal, state and local laws and regulations. In the event of leakage or spillage from any of MERA's equipment or any vehicle under the control or custody of MERA or any contractor or agent for MERA, MERA shall at its own expense promptly clean the City's Property and License Space to the reasonable satisfaction of the City, the Environmental Protection Agency and any public body having jurisdiction in the matter. Any expense of required compliance with federal, state or local environmental regulations incurred by the City or MERA as a direct consequence of MERA's use of the Property or the License Space shall be borne by MERA, including any fines and judgments levied against the City. MERA agrees that in the event the MERA uses, stores, or brings onto the Property or License Space, any hazardous materials and such act(s) result(s) in damage or injury to the Property or License Space, or to the City, the City's employees, agents, or contractors, MERA shall at its own expense, indemnify and hold City, or any of City's employees, agents, or contractors harmless as a result of the damage or injury, including without limitation, to promptly clean City's Property to the reasonable satisfaction of City, the Environmental Protection Agency and any public body having jurisdiction in the matter. Any expense of required compliance with federal, state or local environmental regulations incurred as the result of the above mentioned acts by the MERA shall be borne by the MERA, including any fines and judgments levied against either party.
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The City agrees that in the event the City uses, stores, or brings onto the Property or License Space, any hazardous materials and such act(s) result(s) in damage or injury to MERA, or any of MERA's employees, agents, or contractors, the City, shall at its own expense, indemnify and hold MERA, or any of MERA's employees, agents, or contractors harmless as a result of the damage or injury, including without limitation, to promptly clean MERA's License Space to the reasonable satisfaction of MERA, the Environmental Protection Agency and any public body having jurisdiction in the matter.
Any expense of required compliance with federal, state or local environmental regulations incurred as the result of the above mentioned acts by the City shall be borne by the City, including any fines and judgments levied against either party.
As used in this section, hazardous materials shall mean:
A. " Hazardous substances" and "pollutants and contaminants" as defined in CERCLA, 42 USC Sections 9601 (14) and (33) and regulations issued pursuant thereto, or their successors.
B. "Extremely hazardous substances, hazardous chemicals" and "toxic chemicals" as defined in the Emergency Planning and Community Right to Know Act, 42 USC Sections 11002 (a), 11021(e), and 11023 (c), and regulations issued pursuant thereto, or their successors.
C. "Hazardous chemicals" within the meaning of OSHA's Hazard Communication Rules, 29 CFR Section 1910. 1200, or their successors.
D. Any such materials regulated under state or local environmental laws and regulations similar to the foregoing federal authorities listed in A-C above, or their successors.
E. Any materials not covered by, or exempted from, the sources listed in paragraphs A-D above or their successors, that may nevertheless pose a threat to the City's function as a public agency or to human health or welfare or to the environment including, without limitation, petroleum, including crude oil or any fraction thereof, and radon.
17. Interference.
MERA shall operate the MERA Communication Facilities in a manner that will not cause radio interference to any and all of the City's current or equivalent replacement communications and related equipment on the Property or to the current or equivalent replacement communications and related equipment on the Property owned and operated by other City lessees, licensees, tenants, or invitees currently on the Property, provided that for such other lessees, licensees, tenants, or invitees their installations predate that of the MERA Communications Facilities. In the event of any such interference, MERA shall correct said interference to the satisfaction of City, within twelve (12) hours of City's written or telephonic notice to MERA. In the event that MERA is unable to 9 ( (
correct such interference to City's satisfaction within such time period, MERA shall cease its operation of the MERA Communication Facilities at the end of such time period until the cause of such interference is corrected to City's satisfaction. In addition, prior to making any equipment or frequency changes, MERA shall submit plans for said changes to City for its review and approval. MERA agrees to fund any studies required to ensure that any contemplated changes will be compatible with the City's telecommunications facilities.
All operations by MERA, the City and other lessees, licensees, tenants and invitees shall be in compliance with all Federal Communications Commission ("FCC") requirements. Subsequent to the installation of the MERA Communication Facilities, the City shall not grant further permits or other approvals to other third parties to install new equipment on the Property if such equipment is likely to cause interference with MERA's operations. To insure that said future equipment does not cause interference, the City shall provide MERA with notice of any proposed installation of communication antennas on the Property. Such notice shall include technical information from the party proposing such installation sufficient for MERA to determine whether the installation will interfere with MERA's operation. MERA shall advise the City within ten (10) business days of receipt of such notice whether, in MERA's reasonable determination, the proposed use will cause any interference with the MERA Communication Facilities. In the event interference from any such new installation occurs, the City agrees to take reasonable steps to eliminate such interference in a reasonable time period.
18. Damage or Destruction.
If during the term hereof, the License Space or any part thereof or any improvement constructed by MERA on the License Space shall be damaged or destroyed from any cause whatsoever, other than the City's negligence or willful misconduct, MERA shall, at its sole cost and expense, repair, restore or rebuild the same in accordance with its condition prior to such damage or destruction or in accordance with any plans and specifications first approved in writing by the City after receiving all necessary third party approvals. In the event MERA determines it is commercially infeasible to repair the MERA Communications Facilities, it may elect to terminate this Agreement upon providing the City thirty (30) days advance written notice of its intention to do so.
In the event MERA elects to repair such damage or destruction, MERA shall take all reasonable steps to obtain necessary permits and approvals within a reasonable time.
Work shall commence within thirty (30) days after all permits and approvals are obtained and shall be completed with due diligence. All insurance proceeds collected for such damage or destruction shall be applied to the costs of such repairs and if such insurance proceeds shall be insufficient for such purposes, MERA shall make up the deficiency out of its funds. The failure or refusal of MERA to make the repairs or provide notice of its intention to terminate this Agreement as provided for herein shall constitute a default under the covenants and conditions of this Agreement and the City may at its option terminate this Agreement. In the event of any damage or destruction from any cause other ( (
than the City's negligence or willful misconduct, MERA shall not be entitled to compensation, damages or rebate in rent for loss of use of the MERA Communications Facilities.
19. Merger.
This Agreement contains all the agreements of the parties hereto and no prior agreements or understandings shall be effective or binding for any purpose.
20. Amendment or Modification.
This Agreement may be amended or modified only by the mutual written consent of both parties hereto.
21. Time is of the Essence.
Time is of the essence with respect to the performance of every provision of this Agreement in which time or performance is a factor.
22. Mediation.
Any dispute or claim in law or equity between the City and MERA arising out of this agreement, if not resolved by informal negotiation between the parties, shall be mediated by referring it to the Superior Court of California, County of Marin, for assignment by the Presiding Judge for mediation. Mediation shall consist of an informal, non-binding conference or conferences between the parties and the judge-mediator jointly, then in separate caucuses wherein the judge will seek to guide the parties to a resolution of the case. The mediation process shall continue until the case is resolved or until such time as the mediator makes a finding that there is no possibility ofresolution.
23. Removal of Improvements Upon Expiration of Term or Termination of Agreement.
Upon the expiration of the term of this Agreement or its termination as provided for herein by either party, MERA shall remove all improvements constructed, erected or placed by MERA on the License Space at its sole cost and restore the License Space and the Property to its original condition existing as of the Commencement Date save and except normal wear and tear.
24. Condemnation.
If a condemning authority takes all of the City's property or a portion sufficient to render the License Space unsuitable for MERA's use, MERA may terminate the License as of the date when possession is delivered to the condemning authority. In any condemnation proceeding MERA shall be entitled to make a claim against the 11 ( (
condemning authority for just compensation including the value of MERA's Communications Facility if not removed, moving expenses, prepaid rent, business dislocation expenses, bonus value of this Agreement and any other amounts recoverable under condemnation law. Sale of all or a portion of the License Space to a purchaser with the power of eminent domain in the face of the exercise of its power of eminent domain shall be treated as a taking by a condemning authority.
25. Construction.
Neither initial nor subsequent construction shall commence on the site until the City approves the construction plans and specifications. Construction shall be defined as any work that visibly changes the License Space.
The construction process shall be as follows:
• MERA shall submit five (5) sets of plans and construction specifications to the City.
• The City will review and provide revision "markup" when required twenty (20) business days of submittal of the plans.
• MERA shall resubmit five (5) sets of the revised plans and specifications to the City. If acceptable, the City will mark two sets as approved and return them to the MERA within fifteen (15) business days ofre-submittal. • MERA shall notify the City five (5) business days prior to commencing any construction to the site.
• All construction will be subject to reasonable inspection by the City.
26. Applicable Law.
This Agreement which is governed by the laws of the State of California applies to and binds the successors, and assigns of the parties.
27. Inspection.
City shall be entitled to enter the License Space at any time to inspect the MERA Communication Facilities for compliance with the terms of this Agreement, and with all applicable Federal, state, and local governmental regulations.
28. City Retention of Rights.
City retains the right to use the License Space during the term of this Agreement for any purpose that does not interfere with MERA's use of the License Space as provided herein.
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29. Acceptance of Condition of License Space.
MERA shall accept use of the License Space in an "as is" condition, with no warranty, express or implied, as to the condition of the License Space, including its suitability for the use intended by MERA.
30. Co-Location.
Should the City or any other parties with existing communication and related equipment on the Property seek to relocate such equipment on the Property, MERA shall facilitate the reasonable co-location of such equipment (or equivalent replacement equipment) on the Communication Facilities located in the License Space, including the co-location of antennas on MERA's tower, subject to the City or the other parties obtaining any City or other governmental permits or approvals as may be necessary for such relocation. In the event of the co-location of such existing (or replacement) equipment, the provisions of Paragraph 17 shall continue to apply. Such co-location shall not require any payment to MERA. MERA shall have no obligation for maintenance of any co-located equipment, but shall permit access to such equipment at all times for maintenance by the party owning such equipment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
LICENSOR:
THE CITY OF SAN RAFAEL,
ROD GOULD
City Manager
Date: __ 2__,_/_6__,_/_0_l_______ _
13 APPROVED AS TO FORM:
GARY T. RAGGHIANTI
City Attorney
ATTEST:
J~r::tE~A~
City Clerk
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LICENSEE:
MARIN EMERGENCY
RADIO AUTHORITY
BROCKARNER
Executive Officer
Date: J - 7 - Q /
•
14 APPROVED AS TO FORM:
DAVID J. BYERS
MERA Counsel
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LICENSEE:
MARIN EMERGENCY
RADIO AUTHORITY
BROCKARNER
Executive Officer
Date: ___________ _
14 (
APPROVED AS TO FORM:
1Ja.J.J.":i]tf'.v s)H-/o I
DAVID J. BYERS
MERA Counsel
(
All that certain real property situate in the City of San Rafael, County of Marin, State of California, described as follows:
COMMENCING at a post referred to In that certain Deed from Alexander Forbes to William T. Coleman, recorded October 6, 1871 In Book • J" of Deeds at Page 306, Marin County Records, as marked •c42" thence North sixty four and a half degrees West one chain to a post marked "P.R.2• in a stone mound, thence North thirty-two and a haJf degrees West one and a half chains to a post In a stone mound marked "P.R.3" thence North thirty degrees West four and ten hundredths chains to a post In a stone mound marked "P.R.4", thence North three and a half degrees East three chains to a post In a stone mound marked "P.R.5", thence North twenty one and a quarter degrees West five chains to a post in a stone mound marked "P.R.6" thence North one and a half degrees East two and a half chains to a post in a stone mound marked "P.R.7", thence North forty one and a half degrees West six chains to e post In a stone mound marked '"P.R.8" thence North twenty eight degrees West ten end ten hundredths chains to a post in a stone mound marked "P.R.9" at a point in the exterior boundary line of the land as described in that certain Deed from Alexander Forbes to William T. Coleman, recorded October 6, 1871 in Book "J" of Deeds at Page 306, Marin County Records, distant South eighty seven degrees East three and thirty hundredths chains from the Madrona tree at the North East corner of lands of Adolph Mailliard, thence from post "P.R.9" North seventy five and a half degrees East one chain to a post in a stone mound marked "P .R.1 O", thence South thirty-three degrees East ten chains to a point, thence South thirty nine and a half degrees East six and sixty hundredths chains ~o a post in a stone mound marked "P .R.11" thence South sixteen and three quarter degrees West two and twenty hundredths chains to a post in a stone mound marked "P.R.12" thence South eighteen and a quarter degrees East five chains to a post in a stone mound marked "P .R.13" thence South sixteen and 8 quarter degrees East four and a half chains to post in a stone mound marked "P.R.14" thence South twenty seven and three-quarters degrees East three and sixty hundredths chains to a post in a ~tone mound marked "P.R.15" thence South nineteen end a quarter degrees West one chain to the pomt of beginning.
EXHIBIT "A"
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EXCEPTING THEREFROM any portion which may lie within the boundaries of those certain parcels of land as described in the following instruments of record:
A.)Deed from Bourghton Horne, Inc., to Harold L. Hadlay, et ux, recorded August 28, 1973 in Book 2721 of Official Records, at Page 93, Marin County Records.
S.)Order Confirming Sale issued by the Superior Court of the State of California in and.for the County of Nevada, entitled, "In the Matter of the Estate of Arthur Deluca, Deceased", Case No. 6184, recorded December 2, 1964 in Book 1888 of Official Records, at Page 539, Marin County Records.
Being Parcels A and B, as shown upon that certain survey map entitled, "Record of Survey of the Division of the Jenkins Property", filed for record March 15, 1966 in Volume 5 of Surveys, at Page 9, Marin County Records.
C.)Deed from California Land Title Company to Edward G. Kaufhold, et al, recorded November 17, 1975 in Book 2963 of Official Records, at Page 165, Marin County Records.
D.)Deed from Wallace W. Knox to the City of San Rafael, recorded November 17, 1976 in Book 3114 of Official Records, at Page 588 and re-recorded February 7, 1978 in Book 3328 of Official Records, at Page 324, Marin County Records.
E.)Deed from Philip Lesh to Philip Lesh et ux, recorded Octobl!r 9, 1984 as Recorder's Serial No. 84- 047787, Marin County Records.
F.)Deed from Fred Charles Breismeister to Thomas H. Kirschner, et al, recorded June 21, 1985 as Recorder's Serial No. 85-026024, Marin County Records.
G.)Deed from Ernest T. Bock, et ux, to Marin Pacific Land Holding and Development, Ltd., recorded January 25, 1999 as Recorder's Serial No. 1999-0005739, Marin County Records.
H.)Deed from Jason E. Widmer, et al, as Trustees, to Jason E. Widmer, et ux, record~d August 31, 1999 as Recorder's Serial No. 1999-0065905, Marin County Records.
EXHIBIT "A" (co11ti11ued)
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