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
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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
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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
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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
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Insured Name
(Spprintt Corporation (T-Mobile US, Inc.) (FV
l � 1
Sprint Corporation (T-Mobile US, Inc.)
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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