HomeMy WebLinkAbout10 METROPCS LICENSE AGREEMENTSUMMARY
Approval is requested to authorize the City Manager and/or Assistant Executive Director
to execute an Assignment and Assumption Agreement with MetroPCS Networks
California, LLC {"MetroPCS"} and Horvath Towers III, LLC {"Horvath").
I;ECUMMENDATION
It is recommended that the City Council authorize the City Manager andlor Assistant
Executive Director to execute the attached Assignment and Assumption Agreement with
MetroPCS and Horvath, subject to any non-substantive modifications as may be
deemed necessary by the City Attorney prior to execution of the Agreement.
FISCAL IMPACT
Horvath will be required to comply with the terms and conditions of the executed
Communications Site License Agreement {"License Agreement") with MetroPCS once
the assumption and assignment is complete. Currently, the Licensee is paying $2,400
per month. The new Licensee will continue to make this monthly payment after the
assignment of the License Agreement, including any annual adjustments to the monthly
payment.
BACKGR®UND
On February 1, 2011, the Tustin City Council authorized the City Manager to execute a
License Agreement with MetroPCS. The License Agreement was subsequently
executed by both parties and became effective on February 1, 2011. Building plans
were then approved in September of 2011 for this site by the City. Building permits
have not been issued or requested as of the date of this Agenda Report.
MetroPCS is requesting that the City approve the assumption and assignment of the
License Agreement to Horvath. Attached is an Assignment and Assumption
City Council Agency Report -License Agreement MetroPCS
February 21, 2012
Page 2
Agreement, which when executed, will assign the License Agreement from MetroPCS to
Horvath.
Section 20.7.1 of the License Agreement executed by MetroPCS and the City states the
following:
"Licensee shall not assign, transfer or sublet any right or interest in this Agreement
without written approval of the City, which approval shall not be unreasonably withheld;
provided, however, that Licensee may, without City approval, assign its interest to its
parent company, any subsidiary or affiliate of it or its parent company or to any
successor-in-interest or entity acquiring more than fifty percent (50°l0} of its stock or
assets, subject to any financing entity's interest, if any, in this Agreement.
Notwithstanding the forgoing, Licensee may also without City approval, assign or
transfer this Agreement to any one of the entities listed in Attachment 7, so long as the
Licensee confirms in writing to the City that the capitalized value of that entity to whom
the assignment or transfer is being made has a capitalized value of not less than Two
Billion Dollars ($2,000,000,000). In the event of an assignment not requiring City
approval, Licensee shall provide written notice thereof within thirty (30) days thereafter."
After reviewing the License Agreement, it was determined that Horvath is not identified
as an entity in Attachment 7. Since Horvath is not identified, City approval of the
requested assignment of the License Agreement is required.
City staff has confirmed with MetroPCS that it will be the carrier at this specific wireless
facility as Harvath's tenant once the Assignment and Assumption Agreement has been
executed by all parties.
City staff and the City's wireless consultant, ATS Communications, have reviewed the
ability of Horvath to assume ownership and are of the opinion that Horvath has
demonstrated the capacity to assume assignment of the License. Horvath has been in
business since 1996 and is headquartered in South Bend, Indiana. It is privately owned
and is in good standing with the California Secretary of State. Currently, Horvath owns
159 towers nationally, including 15 towers in California. Horvath Towers III, LLC is a
wholly owned subsidiary of Horvath Towers Holdings. Horvath Communications is the
service company for these entities.
Should you have any questions; staff will be available to respond.
Christine A. Shingleton
Assistant Executive D'` ctor
Attachment
CITE' OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT TO BE
RECORDED AND TO BE EXEMPT FROM
RECORDING FEES PER GOVERNMENT
CODE 6103 AND 2733.
Recording requested by at~d
when recorded mail to:
City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
SPACE ABOVE THIS LINE FOR RECORDER'S USE
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment') is made as of
.2012 (the "Assignment Effective Date") by and between MetroPCS Networks
California, LLC ~{f/kfa Royal Street Communications California, LLC), a Delaware limited liability
company ("Licensee") and Horvath Towers III, LLC ("Assignee"}, with the consent of the
CITY OF TUSTIN, a municipal corporation of the State of California {the "City"), with
reference to the following matters:
A. The City and Licensee have entered into that certain Communications Site
License Agreement dated as of February 1, 2011 (the "License"). The License and all related
documents are collectively referred to as the "License Documents", All initially capitalized
terms not otherwise defined in this Assignment shall have the meanings ascribed to them in the
License.
B. On the date the License was executed, Licensee owned all of the equipment and
facilities described as Licensee's Facilities in Article 1 of the License and as depicted on
Attachment 3 of the License {the "Original Licensee Premises"). Pursuant to the License,
Licensee agreed to develop and construct on the Original Licensee Premises certain
improvements as described in the License Documents ("Improvements"}.
C. The License and License Documents impose certain covenants, conditions,
payment obligations and restrictions on the Original Licensee Premises and, the License restricts
Licensee's ability to transfer ownership andlor control of the Original Licensee Premises, the
Premises, the Improvements andlor Licensee's obligations with respect to the project, all as set
forth in the License.
D. Licensee desires to assign ownership andlor control of the Original Licensee
Premises, the Premises, the Improvements, and/or its interest in the License and its obligations
thereunder to Assignee {the "Transfer Event'). Pursuant to Article 20 of the License, unless
otherwise stated, a transfer or Assignment requires review and approval by the City in order to
relieve Licensee from all future performance, liabilities, and obligations, provided that the
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Assignee shall assume all of Licensee's obligations therein. Licensee and Assignee are entering
into this Assignment in order to fulfill the obligations pursuant to Article 20 of the License.
E. Simultaneously with this Transfer Event, Licensee is conveying in License to
Assignee by Communications Site License Agreement dated February 1, 2011 with the City
those Premises more particularly described on Exhibit "A" (the "Conveyed Premises") and the
Improvements thereon. The Conveyed Premises is the entirety of the Original Licensee
Premises. The Conveyed Premises and the Improvements thereon are collectively referred to in
this Assignment as the "Conveyed License."
NOW, THEREFORE, for good and valuable consideration, Licensee and Assignee agree
as follows:
L Assi nment.
I .l . As of the Effective Date, Licensee hereby assigns, conveys, transfers, bargains,
grants, sells and sets over to Assignee, as and to the extent owned or leased by Licensee, the
following (collectively, the "Assigned Interests"):
(a} all right, title, interest and obligation of Licensee as the "Licensee" under
the License Documents arising from and after the Assignment Effective Date, including (i) all
benefits provided to and burdens imposed upon Licensee pursuant to the License Documents,
and (ii) all benefits provided to and burdens imposed upon the Conveyed Premises and all
improvements thereon and all personal property associated therewith pursuant to the License
Documents;
{b) all right, title ,interest and obligation of Licensee under the [list all other
contracts relating to the Conveyed Premises];
{c) all entitlements, subdivision agreements and other agreements relating to
the development of the Conveyed Premises, including without limitation those certain land use
approvals far the Premises listed in the License as Attachment No. 4, Agreement to Conditions
Imposed;
(d) all plans, specifications, maps, drawings, and other renderings owned by
Licensee and relating to the Conveyed Premises, the project and the Entitlements or such portion
thereof as is subject to this Assignment;
{e) all warranties, claims, and any similar rights relating to and benefiting the
Conveyed Premises or the rights and interests transferred pursuant to this Assignment, including,
without limitation, all warranties related to the Conveyed Premises;
{f} all intangible rights, goodwill, and similar rights relating to the portion of
the Project that is subject to this Assignment and/or the Conveyed Premises;
{g) all development rights relating to the Conveyed Premises, and
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(h} all other rights, claims, or awards relating to the Project andlor Conveyed
Premises for any period subsequent to the date of this Assignment.
1.2. The Assigned Interests together with the Conveyed Premises are collectively
referred to in this Assignment as the "Assigned Premises."
2. Assumption.
2.1. Assignee, on behalf of itself and its successors and assigns, from and after the
date of this Assignment, hereby assumes and receives the Assigned Premises and agrees with
Licensee {and such agreement is expressly also made for the benefit of the City and may be
directly enforced by the City) as follows:
(a) Assignee expressly assumes and shall be subject to all the obligations,
conditions, limitations and restrictions to which Licensee andlor the Conveyed Premises is
subject under or by reason of the License, including without limitation the provisions of the
release set forth in Section 20.7 of the License and the indemnities set forth in Article 9 of the
License;
(b} Assignee expressly assumes and shall be subject to all the obligations,
conditions, limitations and restrictions to which Licensee and/o~ the Conveyed Premises is
subject by reason of the Entitlements; and
(c} Assignee shall pay and perform all obligations of Licensee set forth in the
License that relate to the Conveyed Premises, including without limitation the following
obligations: (i) the obligation to construct the Improvements to be constructed on the Conveyed
Premises in accordance with Attachment No. 3, Licensee's Facilities and Non-Exclusive Site
Access Area; and (ii) the obligation to pay all sums required to be paid by Licensee under the
License in connection with the License of the Conveyed Premises, to the extent such amounts
have not been paid as of the date of this Assignment.
2.2. Assignee agrees that it shall remain fully responsible to perform and satisfy all of
the obligations and liabilities assumed by Assignee pursuant to Section 21 above regardless of
any ofthe following:
(a} the value of the Assigned Premises or the income to be derived therefrom;
(b) the existence or non-existence of any liens, easements, covenants,
conditions, restrictions, claims or encumbrances affecting the Conveyed Premises {including
without limitation any of the foregoing arising from or related to the Entitlements and/or the
License);
{c) the suitability of the Conveyed Premises andlor the Original Licensee
Premises for any and all future development, uses and activities which Assignee or Licensee may
conduct thereon, including the development of the Premises described in the License;
{d) the habitability, merchantability or fitness for a particular purpose of the
Conveyed Premises, the Assigned Interests andlor the Original Licensee Premises;
831999.1
(e) the manner, quality, state of repair or lack of repair of the Conveyed
Premises and/or the Original Licensee Premises;
(fj the nature, quality or condition of the Conveyed Premises andlor the
Original Licensee Premises including water, soil and geology;
(g) the compliance of or by the Conveyed Premises and/or the Original
Licensee Premises or its operation with any of the Entitlements or any Governmental
Requirement, including without limitation the National Environmental Policy Act, CBQA and
the Americans with Disabilities Act of 1990;
(h) the manner or quality of the construction or materials, if any, incorporated
into any part of the Conveyed Premises and/or the Original Licensee Premises;
(i) the presence or absence of Hazardous Materials, at, on, under, or adjacent
to the Conveyed Premises andlor the Original Licensee Premises;
(j) the content, completeness or accuracy of the information, documentation,
studies, reports, surveys and other materials, delivered to Assignee by Licensee or others in
connection with Assignee's review of the Conveyed Premises and/or the Original Licensee
Premises and the transactions contemplated in the License;
(k) the conformity of the existing improvements on the Conveyed Premises
andlor the Original Licensee Premises, if any, to any plans or specifications for the Premises or
the Original Licensee Premises (whether ar not such plans ar specifications have been approved
by the City),
(1) compliance of the Conveyed Premises andlor the Original Licensee
Premises or the improvements thereon with past, current or future statutes, laws, codes,
ordinances, regulations or Governmental Requirements (including without limitation the
Entitlements} relating to zoning, subdivision, planning, building, fire, safety, health or
environmental matters and/or covenants, conditions, restrictions or deed restrictions;
(m) the deficiency of any undershoring or of any drainage to, an or from the
Conveyed Premises;
{n} the fact that all or a portion of the Conveyed Premises andlor the Original
Licensee Premises may be located on or near an earthquake fault line or falls within an
earthquake fault zone established under the Alquist-Priolo Earthquake Zone Act, California
Public Resources Code sections 262 1-2630 or within a seismic hazard zone established under
the Seismic Hazards Mapping Act, California Public Resources Code, sections 2690-2699,6 and
sections 3720-3725;
(o) the existence or lack of vested land use, zoning or building entitlement
affecting the Conveyed Premises andlor the Original Licensee Premises;
{p) the conditions, covenants and restrictions imposed upon the Assigned
Premises or any portion thereof under the License; and
831994.1
(q} with respect to any other matters.
Continuing Liability.
3.1. Notwithstanding the assignment in Section 1 of this Assignment and the
assumption in Section 2 of this Assignment, Licensee is not released from, and remains fully
liable for all obligations and liabilities that have accrued prior to the Assignment Effective Date
under the License Documents and under the Entitlements, including without limitation pursuant
to any indemnity given by Licensee under the License Documents and/or under the Entitlements
3.2. If the Conveyed Premises is less than the entirety of the Licensee Premises held
by Licensee on the date of this Assignment, then following the Assignment Effective Date,
Licensee shall not be released from and shall remain fully liable for all obligations and liabilities
accruing with respect to the portion of the Original Licensee Premises and Improvements thereon
and infrastructure related thereto that is not part of the Conveyed Premises, and that arise or
accrue under the License Documents and the Entitlements, except to the extent specifically set
forth in this Assignment.
4. No Waiver or Modification.
Nothing contained in this Assignment shall modify in any way any other provisions of
the License Documents. Assignee acknowledges that it is taking title to and is assuming the
Assigned Premises subject to, among other things, the rights of the City and other parties as
described in the License.
Additional Documents.
Licensee and Assignee shall each execute and deliver to the other party, upon demand,
such further documents, instruments and conveyances, and shall take such further actions as are
necessary or desirable to effectuate the intent and purposes of this Assignment. In addition to the
foregoing, Licensee shall reasonably cooperate with Assignee, at the expense of Assignee, to
allow Assignee to submit and process any warranty claim under any warranty in which Assignee
obtained an interest as part of the Assigned Interests.
Miscellaneous.
6.1. Modifcation. No amendment, change, modification or supplement to this
Assignment shall be valid and binding on Licensee or Assignee unless it is represented in writing
and signed by both Licensee and Assignee, No amendment, change, modification or supplement
to this Assignment shall be deemed to be part of the consent or deemed to be consented to by the
City, unless the City executes a separate written consent to such amendment, change,
modification ar supplement.
b.2. Applicable Law, This Assignment shall be governed by, interpreted under,
construed and enforced in accordance with the laws of the State of California, irrespective of
California's choice-of--law principles.
$31949.1
6.~. Binding Effect. This Assignment and the terms, provisions, promises, covenants
and conditions hereof shall be binding upon and inure to the benefit of Licensee and Assignee
and their respective heirs, legal representatives, successors and assigns.
6.4. Counterparts. This Assignment may be executed in two or more separate
counterparts, each of which, when so executed, shall be deemed to be an original. Such
counterparts shall, together, constitute and shall be one and the same instrument. This
Assignment shall not be effective until the execution and delivery by Licensee and Assignee of
at least one set of counterparts (together with an executed counterpart of the City's consent
attached to this Assignment). A facsimile counterpart of this Assignment shaIl not be effective
unless an ink-signed original executed copy of the signature page of this Assignment is also
promptly delivered to the other parry by United States mail (postage prepaid) or by hand
delivery, and such ink-signed anginal executed page is actually received by the ather party
within five (5) days of its execution. Licensee and Assignee hereby authorize each other to
detach and combine original signature pages and consolidate them into a single identical original.
Any one of such completely executed counterparts shall be sufficient proof of this Assignment as
a duly and validly executed agreement.
6.5. City as Third Party Beneficiary. Licensee and Assignee hereby acknowledge and
agree that far the remainder of the term of the License Agreement, or any extensions granted
thereof, the City shall be an intended third party beneficiary under this Assignment and the City
shall have the right to enforce the terms and provisions of this Assignment applicable to the City.
Other than the City, there shall be no third party beneficiaries of this Assignment.
6.6. Notices. All notices that the City may desire or is required to deliver to the
"Licensee" under the License Documents andlor the Entitlements, and pursuant to Section 20.9
of the License, shall [be delivered to Assignee anlyl[be delivered to Licensee and to
Assignee] at the following addresses:
Licensee:
Attn:
Assignee:
Attn:
jsignature page follows)
831999.1
IN WI'TI~1ES5 WI~ERE®F', Licensee and Assignee each has caused this Assignment to be
duly executed by its officer duly authorized as of the date first above written.
LICENSEE:
METROECS NETV6~ORKS CALIFORNIA, LLC, A
DELAWARE LII4IITED LIABILITY COMPANY
By:
Name
Title
By:
Name
Title
ASSIGNEE:
a
By:
I~tame:
Title:
By:
Name:
Title:
831999. I
A~ ®~L,EDGIVIEN~' AND CONSENT B~' CITY OF `PIISTIN
~y executing this Acknowledgment and Consent, the City of Tustin hereby;
(a) Acknowledges receipt of the Assignment and Assumption Agreement (the
"Assignment"} to which this Consent is attached;
(b) Consents to the making of the Assignment between Licensee and Assignee,
subject to the terms and conditions set forth in the Assignment;
{c} This Consent by the City constitutes the consent required pursuant to Article 20 of
the License and constitutes satisfaction of Licensee's obligation to obtain the City's consent
pursuant to Article 20 of the License; and
(d) Agrees that Horvath Towers III, LLC (the Assignee in the Assignment)
shall be deemed by the City to be the "Licensee" [for all purposes][with respect only to the
Conveyed Premises] under the License from and after the Assignment Effective Date [or as
regnired to be modified to address the specific terms of the Assignment].
(e) [with respect to Transfer by Licensee of the entirety of its interest in
the Original Licensee Premises to Assignee only, otherwise modify to retain appropriate
Licensee liability] Acknowledges that Licensee shall be released for matters first arising under
the License on or after the Agreement Effective Date set forth on the first page of the
Assignment; provided that in no event shall Licensee be released from any obligation or liability
of Licensee under the License that arose or accrued prior to the Agreement Effective Date
(including without limitation any obligation or liability pursuant to any indemnity made by
Licensee to the City under the License Documents or the Entitlements).
(fj Acknowledges the new addresses for Notices under the License and the
Entitlements set forth in the Assignment.
This Consent by the City to the Assignment shall not constitute evidence of compliance
with or satisfaction of any obligation of Licensee under the License Documents, or any other
agreement between Licensee and the City.
831999.1
CI'TE'.
CITY OF TUSTIN
Bated: By:
Name:
Title:
ATTEST:
~y:_
Name:
Title:
APPROVED AS TO FORM.:
By:
Its:
831999.1
STATE OF CALl'~`®I~NIA )
} ss.
CC9UNTY ®~' t~RANCdE )
t7n before me,
(name of notary public )
personally appeared _ _ who proved to me
an the basis of satisfactory evidence to be the person(s) whose names} islare subscribed to the
within instrument and who acknowledged to me that helshelthey executed the same in their
authorised capacity(ies), and by his/her/their signature(s) on the instrument the person(s), or
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY 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 of Notary)
(SEAL)
s~i999.i
STATE C3F CALIFC)RNIA }
ss.
~OUNT~ C» ~RAN~~ }
C}n before me, ,
{name of notary public }
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 who acknowledged to me that he/she/they executed the same in their
authorized capacity(ies), and by hislherltheir signatures} on the instrument the persons}, or
entity upon behalf of which the persons} acted, executed the instrument.
I certify under PENALTY 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 of Notary)
{SEAL)
831999.1
STATE OF CALIFORNIA }
ss.
COUNTY OF ORANGE )
On before me, ,
{name of notary public )
personally appeared who proved to me
on the basis of satisfactory evidence to be the person{s) whose names} is/are subscribed to the
within instrument and who acknowledged to me that he/she/they executed the same in their
authorized capacity(ies}, and by his/her/their signature(s) on the instrument the person{s), or
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY of PERJURY under the laws of the state of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
{SEAL}
(Signature of Notary}
s~ls9s.~
EXHIBIT "A"
C®1V'VEYEI) PREMISES
831999.1
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