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HomeMy WebLinkAboutC-3706(A1) - Equipment Transfer Agreement (For Canyon Watch Park)V Site ID: OG54XC425D EQUIPMENT TRANSFER AGREEMENT This EQUIPMENT TRANSFER AGREEMENT (this "Agreement") is made and entered into as of the date of the last party to execute this Agreement (the "Effective Date"), by Sprint PCS Assets, LLC, a Delaware limited liability company, or any affiliate or successor in interest ("Transferor"), in favor of City of Newport Beach, a California municipal corporation and charter city ("Transferee"), successor in interest to County of Orange. Transferor and Transferee shall individually be referred to as a "Party" and collectively as the "Parties". WHEREAS, the Parties (or their respective predecessors in interest) entered into a Communications Site Lease dated November 7, 2003, as may have been amended (collectively, the "Lease") for Transferor to utilize certain portions of 5000 San Joaquin Hills Road (formerly �J69--2 -Saw-Joaquin—Hills -Road); Newport -Beach, CA 92660 [A.P. - 461 n1 041 (the "Property"); WHEREAS, a Notice of Non -Renewal was sent to Transferee on November 9, 2022, stating that the Lease would expire effective November 30, 2023 ("Lease Expiration Date"), and the Parties agree that no further notice is required evidencing the intent to end Transferor's tenancy at the Property; WHEREAS, the Parties further agree that title to the fixtures and personal property described in Exhibit A, attached hereto and incorporated herein by this reference ("Transferred Property"), shall not be removed by Transferor, that title shall pass to Transferee, and that Transferee shall become the lawful owner of the Transferred Property; WHEREAS, Transferor's fixtures and personal property not specified in Exhibit A shall be removed by Transferor in accordance with the terms of the Lease and the terms of this Agreement no later than July 31, 2024; WHEREAS, rent and any other fees payable by Transferor under the Lease shall continue to accrue and become due and payable to Transferee pursuant to the terms of the Lease; WHEREAS, the monetary obligations of Transferor under the Lease shall cease in accordance with the terms of the Lease, upon removal of all of Transferor's fixtures and personal property not specified in Exhibit A, attached hereto, from the Property, and subject to an inspection and reasonable approval of restoration of the Property to the Transferee's reasonable satisfaction in accordance with the terms of the Lease except for restoration or removal requirements related to the Transferred Property; and WHEREAS, this Agreement specifically relates to the Transferred Property and does not otherwise affect, amend or limit any other rights or obligations of the Parties under the Lease. NOW, THEREFORE, in consideration of the terms, conditions, covenants and mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of Site ID: OG54XC425D which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows: 1. Equipment and Surrender Obligations. a) Surrender Obligations and Transfer of Title. Transferee agrees that Transferor shall surrender the Property in accordance with the terms of the Lease, with the exception that Transferor will not remove the Transferred Property. Transferor shall leave, convey, transfer, and assign all rights in and title in the Transferred Property to Transferee as of the date the Lease terminates, at which time title to the Transferred Property automatically passes to Transferee and Transferee accepts the Transferred Property on an "as is" basis. In accordance with the terms of the Lease, Transferor shall remove all other fixtures and personal property which are not specified in Exhibit A. b) Cooperation and Access. Transferee agrees to cooperate with Transferor regarding any necessary actions, including assisting Transferor with Transferor's obligation of obtaining any required permits or other approvals. Transferor shall have the right of access to the Property under the holdover provisions of the Lease to complete any such work, on a twenty-four (24) hours a day, seven (7) days per week basis. 2. Compensation in Lieu of Removal of Transferred Property. a) The Parties agree that the approximate cost of removal of the Transferred Property is One Hundred Thousand Dollars and 00/100 ($100,000.00). In lieu of Transferor's compliance with to the terms of the Lease which would otherwise require removal of the Transferred Property, Transferor shall pay to Transferee the amount of One Hundred Thousand Dollars and 00/100 ($100,000.00) prior to. 3. Settlement of Claims. a) Release of Claims by Transferor. In exchange for the promises contained in this Agreement, and excepting the obligations provided for in this Agreement and the terms of the Lease, Transferor hereby waives, releases and forever discharges, and agrees to the extent permitted by law that it will not in any manner institute, prosecute or pursue, any and all complaints, charges, claims for relief, demands, damages, suits, actions or causes of action, of any kind, whether in law or in equity, which it asserts or could assert, at common law or under any statute, rule, regulation, order or law, whether federal, state or local, or on any grounds whatsoever, against the Transferee and/or any of its current or former officers, council members, agents, representatives, employees, successors and assigns to the extent any such matter pertains to the surrender and transfer of ownership of the Transferred Property pursuant to this Agreement. b) Release of Claims by Transferee. In exchange for the promises contained in this Agreement, and excepting the obligations, representations, and warranties expressly made by Transferor contained in this Agreement and excepting the terms of the Lease unless 2 Site ID: OG54XC425D otherwise provided herein, Transferee hereby waives, releases and forever discharges, and agrees to the extent permitted by law that it will not in any manner institute, prosecute or pursue, any and all complaints, charges, claims for relief, demands, damages, suits, actions or causes of action, of any kind, whether in law or in equity, which it asserts or could assert, at common law or under any statute, rule, regulation, order or law, whether federal, state or local, or on any grounds whatsoever, against Transferor and/or any of its or their current or former owners, trusts, trustees, officers, directors, shareholders, affiliates, agents, representatives, employees, attorneys, successors, predecessors, insurers, and assigns to the extent any such matter pertains to the surrender and transfer of ownership of the Transferred Property pursuant to this Agreement and any restoration or removal requirements related to the Transferred Property pursuant to the Lease. Notwithstanding the foregoing, this release does not alter Section 21 of the Lease pertaining to Hazardous Materials which shall remain in full force and effect. c) Transferor agrees that it shall be deemed to have waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits of Section 1542 of the California Civil Code, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. Transferor's Initials Transferee's Initials 4. Covenants of Transferor. Transferor hereby covenants with, and represents and warrants to, Transferee that, as of the Effective Date: a) Transferor is lawfully seized and possessed of the Transferred Property; b) Transferor has the right to sell, transfer and convey the Transferred Property to Transferee; c) The Transferred Property shall be transferred to Transferee free and clear of all security interests, liens, and other encumbrances of any type or description; and d) EXCEPT AS EXPRESSLY SET FORTH HEREIN, TRANSFEROR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 5. Miscellaneous. a) This Agreement supersedes all prior discussions and agreements between the Parties with respect to the transfer of the Transferred Property, and this Agreement contains the sole and entire understanding and agreement between the Parties with respect thereto. Except 3 Site ID: OG54XC425D otherwise provided herein, Transferee hereby waives, releases and forever discharges, and agrees to the extent permitted by law that it will not in any manner institute, prosecute or pursue, any and all complaints, charges, claims for relief, demands, damages, suits, actions or causes of action, of any kind, whether in law or in equity, which it asserts or could assert, at common law or under any statute, rule, regulation, order or law, whether federal, state or local, or on any grounds whatsoever, against Transferor and/or any of its or their current or former owners, trusts, trustees, officers, directors, shareholders, affiliates, agents, representatives, employees, attorneys, successors, predecessors, insurers, and assigns to the extent any such matter pertains to the surrender and transfer of ownership of the Transferred Property pursuant to this Agreement and any restoration or removal requirements related to the Transferred Property pursuant to the Lease. Notwithstanding the foregoing, this release does not alter Section 21 of the Lease pertaining to Hazardous Materials which shall remain in full force and effect. c) Transferor agrees that it shall be deemed to have waived and relinquished, to the fullest extent permitted by law, the provisions, rights, and benefits of Section 1542 of the California Civil Code, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. Transferor's Initials Transferee's Initials 4. Covenants of Transferor. Transferor hereby covenants with, and represents and warrants to, Transferee that, as of the Effective Date: a) Transferor is lawfully seized and possessed of the Transferred Property; b) Transferor has the right to sell, transfer and convey the Transferred Property to Transferee; c) The Transferred Property shall be transferred to Transferee free and clear of all security interests, liens, and other encumbrances of any type or description; and d) EXCEPT AS EXPRESSLY SET FORTH HEREIN, TRANSFEROR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 5. Miscellaneous. a) This Agreement supersedes all prior discussions and agreements between the Parties with respect to the transfer of the Transferred Property, and this Agreement contains the sole and entire understanding and agreement between the Parties with respect thereto. Except 3 Site ID: OG54XC425D with regard to the Transferred Property, in the event of any inconsistency or conflict between the terms and provisions of this Agreement and the Lease, the Lease shall control. b) The Parties agree to use reasonable commercial efforts to execute and deliver such additional documents and to do such other acts as may be reasonably necessary or advisable to more fully implement or evidence the transactions contemplated by this Agreement. c) If any provision of this Agreement is unlawful or unenforceable under applicable law, the other provisions and the unlawful or unenforceable provision shall remain in effect to the extent permitted under applicable law. d) This Agreement shall be binding upon the Parties and their respective successors and assigns. This Agreement shall--be-governed by and-construed-and-enforced-in-accordance_with -the laws of the State of California, and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. f) The use of the word "or" herein is not exclusive. g) The recitals set forth in the preamble of this Agreement are hereby incorporated into this Agreement as if fully set forth herein. h) Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. i) This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. j) The signatories represent and warrant that he or she is duly authorized to execute this Agreement on behalf of their respective Party. k) In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. ( Remainder of Page Intentionally Left Blank ) M Site ID: OG54XC425D IN WITNESS WHEREOF, this Agreement has been executed by the Parties and is effective on the date of the last Party to sign this Agreement, as evidenced below: Transferor: Sprint PCS Assets, LLC, a Delaware limited liability company �irned in Counterpart Name: Mark Bishop Director, Strategy & Planning Title: Technology Date: Transferee: City of Newport Beach, a California municipal corporation and charter city, successor in interest to County of Orange Name: Grace K. Leung Title: City Manager Date: yljLLy APPROVED AS TO F RM: CITY ATTORNEY'S OFFICE 7 Name: (Aaron C. Harp Title: City Attorney 3�sla� Date:�7 �Z-G( ATTEST: By: Name: Title: Date: 4"4 V T.eilani T_ Brown 61 Site ID: OG54XC425D IN WITNESS WHEREOF, this Agreement has been executed by the Parties and is effective on the date of the last Party to sign this Agreement, as evidenced below: Transferor: Sprint PCS Assets, LLC, a Delaware limited liability company Transferee: City of Newport Beach, a California municipal corporation and charter city, successor in interest to County of Orange By: -yam Name: Mark Bishop Name Director, Strategy & Planning Title: Technolo Title: Date: 03 D V X 44 7 Date: APPROVED AS ATTORNEY'S Of Grace K. Leung City Manager TO F RM: CITY CE / dsJl�.l1v�� Name: (Aaron C. H Title: City Attorney Date: ATTEST: By: Name: Title: Date: 5 Leilani I. Brown City Clerk Site ID: OG54XC425D EXHIBIT A Transferred Property The following equipment Facilities shall be left in place and become part of the Property being transferred to the Transferee/Lessor by way of this Agreement. 1. Surrounding Sitting Area 2. Gazebo 3. Stealth Rock Site ID: OG54XC425D 4. In -Ground Vault Site Address: 21692 San Joaquin Hills Road, Newport Beach, CA 92660 Site ID: OG54XC425 Lease ID: OG54XC425-D-001 q 2 279 L+ 78 ® C qSearch Insured Name (Spprintt Corporation (T-Mobile US, Inc.) (FV l � 1 Sprint Corporation (T-Mobile US, Inc.) Active Records Only Advance Search Insured Tasks Admin Tools View i I. s:i Insured Notes History Deficiencies Coverages Requirements Add Edit Help Video Tutorials l.Li Insured Name: Account Number: Address: Status: Insured Sprint Corporation (T-Mobile US, Inc.) A FV00000985 12920 SE 38th Street, Bellevue, WA, USA, 98006 Compliant with Waived Deficiencies. Business Units) Print Insured Info Account Information Account Number: FV00000985 Risk Type: Telecom Agreement Do Not Call: Address Updated: Address Information Mailing Address Physical Address Insured: Sprint Sprint Corporation Corporation (T- Mobile US, Inc.) Address 1: 12920 SE 38th OG54XC425 Street Address 2: 21692 San Joaquin Hi City: Bellevue Newport Beach State: WA CA