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HomeMy WebLinkAbout6.e. Approve First Amendment to Tower Lease Amendment – Chippendale Tower ROSEtvlOUI\TT EXECUTIVE SUMMARY CITY COUNCIL City Council Meeting: December 4, 2012 AGENDA ITEM: Approve First Amendment to Tower AGENDA SECTION: Lease Agreement— Chippendale Tower Consent PREPARED BY: Andrew J. Brotzler, PE, Director of ; • is AGENDA NO (p,t. Works/City Engineer ATTACHMENTS: Utility Commission Executive Summary 11-19-12 APPROVED BY: 0a.) RECOMMENDED ACTION: Motion to Approve the First Amendment to Tower Lease Agreement with Sprint Spectrum Realty Company, LP for the Cellular Equipment on the Chippendale Water Tower and Authorize Necessary Signatures. BACKGROUND: The current lease agreement between the City of Rosemount and Sprint Spectrum Realty Company,LP (Sprint) for cellular equipment on the Chippendale Water Tower will expire December 31,2012. Representatives from Sprint have asked for an amendment to extend the lease agreement for four (4) additional five-year periods,beginning January 1,2013 and ending December 31, 2032. Attached is the Executive Summary from the November 19, 2012 Utility Commission Meeting,which includes the First Amendment that the City Attorney drafted and Sprint has signed and agreed to. Notable changes to the Lease Agreement are documented in the Executive Summary. The Utility Commission has made a recommendation for City Council approval of the First Amendment, extending the lease as described. SUMMARY: Staff is requesting Council approval and execution of the First Amendment to Tower Lease Agreement with Sprint Spectrum,LP for the cellular equipment on Chippendale Tower. G:\Antenna Leases\SPRINT\20121204 CC Approve First Amendment-Sprint.docx 4 ROSEMOUNT EXECUTIVE SUMMARY UTILITY COMMISSION Utility Commission Meeting: November 19, 2012 AGENDA ITEM: First Amendment to Tower Lease AGENDA SECTION: Agreement Consent PREPARED BY: Andrew J. Brotzler, PE, Director of Public AGENDA NO. Works/City Engineer 6a. ATTACHMENTS: First Amendment to Tower Lease APPROVED BY: Agreement RECOMMENDED ACTION: Recommend City Council Approval of First Amendment to Tower Lease Agreement with Sprint Spectrum Realty Company, LP for the Cellular Equipment on the Chippendale Water Tower. BACKGROUND: The current lease agreement between the City of Rosemount and Sprint Spectrum Realty Company,LP (Sprint) for cellular equipment on the Chippendale Water Tower will expire December 31,2012. Representatives from Sprint have asked for an amendment to extend the lease agreement for four(4) additional five-year periods,beginning January 1,2013 and ending December 31,2032. Attached is the First Amendment to Tower Lease Agreement that the City Attorney has reviewed and Sprint has approved and executed. This Amendment includes the following notable changes to the original Lease Agreement with Sprint • Annual rent increase will be 5%or the Consumer Price Index (CPI),whichever is greater, beginning January 1,2013. The annual rent increase in the original lease was 4% or CPI, whichever was greater. • Article 6.14 M has been added to clarify the charges that the lessee will incur for after-hours maintenance requiring City staff to lock/unlock City facilities. Other minor changes have been included as outlined in the Amendment. SUMMARY: Staff is requesting that the Utility Commission make a recommendation for City Council approval of the First Amendment to Tower Lease Agreement with Sprint Spectrum Realty Company,LP. G:\Antenna Leases\SPRINT\20121119 UC Lease Amendment-Sptintdocx Site ID: MS03XC135 Site Address: 14950 Chippendale Avenue, Rosemount,MN 55068 FIRST AMENDMENT TO TOWER LEASE AGREEMENT THIS FIRST AMENDMENT TO TOWER LEASE AGREEMENT ("Amendment") is entered into effective as of January 1, 2013 (the "Effective Date"), by and between CITY OF ROSEMOUNT, a Minnesota municipal corporation ("Lessor"), and SPRINT SPECTRUM REALTY COMPANY,LP,a Delaware limited partnership,together with its successors and assigns ("Lessee"). RECITALS WHEREAS, Lessor and Lessee (or their predecessors in interest) entered into that Tower Lease Agreement dated February 1, 1997 as amended by Lease Supplement dated April 17, 1997 (the "Agreement"), whereby Lessor leased to Lessee certain premises described therein, together with all other space and access and utility easements pursuant to the terms of the Agreement (collectively, the "Premises"), that are a portion of the property located at 14950 Chippendale Avenue,Rosemount,MN 55068 (the"Property");and WHEREAS, Lessor and Lessee, in their mutual interest, wish to add additional renewal terms and amend the Agreement as set forth herein. NOW, THEREFORE, in consideration of the foregoing Recitals,which are incorporated herein by this reference, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,Lessor and Lessee hereby agree as follows: 1. Article 1 paragraph I)is deleted and the following substituted therefor I) Extension Periods: Six(6) automatic renewal periods of five (5)years,beginning at midnight on the Expiration Date of the initial term(December 31,2002). 2. Article 3,Section 3.02 is deleted and the following substituted therefor. 3.02. RENT. Rent for the first partial calendar year commencing on the Commencement Date and ending December 31, 1997 shall be as specified in Article 1 (H), prorated to the number of days in such partial year. Rent shall be increased annually on January 1 of each subsequent year,commencing January 1, 1998 and ending December 31, 2012 by an amount equal to the percentage change in the CPI or 4%,whichever is greater. Thereafter, rent shall be increased annually on January 1 of each subsequent year, commencing January 1, 2013, for as many years as this Lease continues to be in effect, by an amount equal to the percentage change in the CPI or 5%,whichever is greater. 410655v2 CLL RS220-31 G:\Antenna Leases\SPRINT 20120911 First Amendment to Tower Lease Agt 2.docx The CPI shall mean the "Consumer Price Index for all Urban Consumers, all Cities, all Items (1967 = 100)" as published by the United States Department of Labor Statistics,or if such index shall be discontinued, the successor index thereto, or if there shall be no successor index, such comparable index as shall be mutually agreed upon by the parties hereto. Lessor shall be responsible for communicating all rental increases to the Lessee. Such rent shall be paid to the City of Rosemount or to such other person, firm,or place as the Lessor may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. 3. Article 6.14 of the Agreement is amended to add the following paragraphs: E) Lessee will not allow the Lessee Facilities to cause interference with equipment of other tenants installed and maintained on the Property pursuant to the following leases: AT&T Wireless Services of Minnesota,Inc. under that certain Tower Lease Agreement by and between the City of Rosemount and AT&T Wireless Services of Minnesota,Inc.dated May 15,2000 Clear Wireless LLC under that certain Tower Lease Agreement by and between the City of Rosemount and Clear Wireless LLC dated March 16,2010. Lessee acknowledges receipt of a copy of said Tower Lease Agreements. F) Lessee shall place no advertising on the site or on any structure on the site. G) All antenna panels will be painted to match the Tower. H) All landscaping and turf which is damaged by Lessee shall be restored to a condition reasonably acceptable to Lessor. I) Lessee shall not use any process or method in the installation,maintenance or removal of any improvement on the Tower by means of welding, cutting tool, or other device, which could damage the Tower,including its interior and exterior paint or any equipment attached thereto, without the Lessor's prior written consent, which shall not be unreasonably withheld. J) Lessee must keep the property free of debris and anything of a dangerous, noxious or offensive nature or which would create a hazard,undue vibration,heat,noise,etc. K) Lessee shall temporarily remove its Facility at Lessee's cost, upon reasonable notice to allow maintenance, repair, repainting, or restoration to other activity as reasonably required by Lessor. There may be scheduled interruptions in use of the Facility for such maintenance,repainting or restoration. Except in the case of an emergency Lessor shall give Lessee thirty (30) days' notice of repair,repainting or restoration. In case of an emergency, Lessor may temporarily shut down Lessee's Facility but shall notify Lessee by telephone prior to such shut down, or if the nature of the emergency so requires, within a reasonable 410655v2 CLL RS220-31 G:\Antenna Leases SPRINT 20120911 First Amendment to Tower Lease Agt 2.docx time immediately following such shut down. An "emergency" shall be deemed to exist only in those situations which constitute an immediate threat to the health or safety of the public or immediate danger to the Property. In the event the use of Lessee's Facility is interrupted, or Lessee is required to temporarily remove its Facility pursuant to this Section K), Lessee shall have the right to maintain mobile cellular sites on wheels on the Property or after approved by Lessor,on any land owned or controlled by Lessor in the immediate area of the Property. L) Lessee may assign this Agreement to a parent, subsidiary or purchaser of all or substantially all of Lessee's assets with written notice to Lessor within thirty (30) days following such assignment. M) Lessee will pay the Lessor for expenses incurred when Lessor is required to lock or unlock facilities to provide access to Lessee for routine maintenance scheduled during non- business hours. Business hours are Monday through Friday 7:00 a.m. to 3:00 p.m. Lessee will be invoiced for staff time at their overtime rate plus benefits. The number of hours charged will be determined by the Teamsters contract in place with the City at the time of the service request (currently 2.5 hours for each call out). Lessee will pay charges within 30 days of receipt of the invoice. All other terms and conditions of the Agreement will remain the same and in full force and effect and are ratified and confirmed by the parties. IN WITNESS WHEREOF, the parties have caused their properly authorized representatives to execute and deliver this Amendment effective as of the Effective Date. LESSOR: LESSEE: City of Rosemount Sprint Spectrum Realty Company,LP By By: Print Name: William H.Droste Print Name: Title: Mayor Title: 410655v2 CLL RS220-31 G:Wntenna Leases\SPRINT'2012091 I First Amendment to Tower Lease Agt 2.docx MEMORANDUM OF FIRST AMENDMENT TO TOWER LEASE AGREEMENT This Memorandum of First Amendment to Lease is entered into on , by and between CITY OF ROSEMOUNT, a Minnesota municipal corporation ("Lessor"),whose mailing address for notices is 2875 145th Street W,Rosemount,MN 55068 and SPRINT SPECTRUM REALTY COMPANY, LP, a Delaware limited partnership ("Lessee"), whose mailing address for notices is 2900 Lone Oak Parkway, Suite 140, Eagan,MN 55121,Attn: Karl R.Bursen. WHEREAS, Lessor and Lessee (or their predecessors in interest) entered into that certain Tower Lease Agreement dated February 1, 1997, as amended (the "Agreement"), whereby Lessor leases to Lessee certain premises described therein, together with all other space and access and utility easements pursuant to the terms of the Lease (collectively,the"Premises"),that are a portion of the property located at 14950 Chippendale Avenue, Rosemount, MN 55068 (the "Property"), with an APN #of WHEREAS, pursuant to that certain First Amendment to Tower Lease Agreement executed on (the "First Amendment"),Lessor and Lessee agreed to amend and modify certain terms of the Agreement, as more particularly set forth in the First Amendment. 1. The First Amendment modifies certain of Lessee's rights and obligations under the Agreement,as more particularly set forth therein. 2. As set forth in the First Amendment, the last renewal term of the Agreement expires on December 31,2012 ("Current Term"),and Lessee has the right to renew the term of the Agreement for up to four (4) additional and successive five (5) year periods (each a "Renewal Term"). Each Renewal Term shall automatically commence, on the same terms and conditions of the Agreement (as amended by the First Amendment), without further action by Lessee, unless (i) the Agreement is sooner terminated in accordance with its terms or (ii) Lessee provides Lessor with written notice of its intention not to renew at least sixty (60) days prior to the expiration of any Renewal Term. 3. Lessor and Lessee desire and hereby enter into this Memorandum of First Amendment to Agreement to provide constructive notice of the existence of the First Amendment and the parties'rights under the First Amendment. 4. The terms and conditions of the Agreement and the First Amendment are hereby incorporated as if set forth herein in full. This Memorandum of First Amendment to Lease is not intended to amend or modify,and shall not be deemed or construed as amending or modifying,any of the terms, conditions or provisions of the Agreement or the First Amendment, all of which are hereby ratified and affirmed. The Agreement, as amended by the First Amendment, shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, and shall run with the land and bind all assignees, transferees or successors of the parties' respective interests. 410655v2 CLL RS220-31 G:.Antenna Leases\SPRIN1T20120911 First Amendment to Tower Lease Agt 2.docx IN WITNESS WHEREOF, the parties have executed this Memorandum of First Amendment to Lease on the day and year first above written. LESSOR: LESSEE: City of Rosemount, Sprint Spectrum Realty Company,LP, a Minnesota municipal corporation a Delaware limited partnership By: By: Print Name: William H. Droste Print Name: Title: Mayor Title: PREPARED BY: City of Rosemount 2865 145th Street West Rosemount,MN 55068 WHEN RECORDED RETURN TO: Sprint Spectrum,LP 2900 Lone Oak Parkway,Suite 140 Eagan,MN 55121 410655v2 CLL RS220-31 G:Wntenna Leases\SPRIN'I\20120911 First Amendment to Tower Lease Agt 2.docx LESSOR ACKNOWLEDGMENT STATE OF Minnesota ) ) ss: COUNTY OF Dakota ) On ,2012,before me, ,a Notary Public,personally appeared William H.Droste,who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Minnesota that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: (Seal) LESSEE ACKNOWLEDGMENT STATE OF ) ) ss: COUNTY OF ) On ,2012,before me, ,a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. WITNESS my hand and official seal. Signature: (Seal) 410655v2 CLL RS220-31 G:\Antenna Leases\SPRINT 20120911 First Amendment to Tower Lease Agt 2.docx EXHIBIT A PREMISES DESCRIPTION AND LEGAL DESCRIPTION OF PROPERTY Street Address: 14950 Chippendale Avenue,Rosemount,MN 55068 APN: LEGAL DESCRIPTION OF THE PROPERTY: Address: 14950 Chippendale Avenue Rosemount,Minnesota 55068 Legal: That part of Lot Twelve (12),Auditor's Subdivision No.27 contained within the following description: the Southerly 200 feet of the Easterly 217 feet of the Westerly 250 feet of the Southwest Quarter of the Southwest Quarter of said Section 29,Township 115,Range 19,Rosemount, according to the plat thereof now on file of and of record in the Office of the Register of Deeds in and for said County and State. 410655v2 CLL RS220-31 G:\Antenna Leases\SPRINT120120911 First Amendment to Tower Lease Agt 2.docx