HomeMy WebLinkAbout6.m. Approve First Amendment to Tower Lease AgreementG:\ANTENNAS\AT&T\20150519 CC Approve 01ATT2000N First Amendment.docx
E X E C U T I V E S U M M A R Y
City Council Meeting: May 20, 2015
AGENDA ITEM: Approve First Amendment to Tower Lease
Agreement
AGENDA SECTION:
Consent
PREPARED BY: Christine Watson, Public Works Coordinator AGENDA NO. 6.m.
ATTACHMENTS: Executive Summary from May 18, 2015 Utility
Commission Meeting APPROVED BY:
RECOMMENDED ACTION: Motion to Approve the First Amendment to Tower Lease
Agreement with New Cingular Wireless PCS, LLC (AT&T) for the Cellular Equipment on the
Chippendale Water Tower and Authorize Necessary Signatures
BACKGROUND:
The current lease agreement between the City of Rosemount and New Cingular Wireless PCS, LLC
(AT&T) for cellular equipment on the Chippendale Water Tower will expire December 31, 2015.
Representatives from AT&T have asked for an amendment to extend the lease agreement for four (4)
additional five-year periods, beginning January 1, 2016 and ending December 31, 2035.
Attached is the Executive Summary from the May 18, 2015 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 New Cingular Wireless PCS, LLC (AT&T) for the cellular equipment on Chippendale Tower.
G:\ANTENNAS\AT&T\20150518 UC Approve 01ATT2000N First Amendment.docx
E X E C U T I V E S U M M A R Y
Utility Commission Meeting: May 18, 2015
AGENDA ITEM: First Amendment to Tower Lease Agreement
(AT&T)
AGENDA SECTION:
New Business
PREPARED BY: Christine Watson, Public Works Coordinator AGENDA NO.
6.a.
ATTACHMENTS: First Amendment to Tower Lease Agreement APPROVED BY:
RECOMMENDED ACTION: Recommend City Council Approval of First Amendment to
Tower Lease Agreement with New Cingular Wireless PCS, LLC (AT&T) for the Cellular
Equipment on the Chippendale Water Tower
BACKGROUND:
The current lease agreement between the City of Rosemount and New Cingular Wireless PCS, LLC
(AT&T) for cellular equipment on the Chippendale Water Tower will expire December 31, 2015.
Representatives from AT&T have asked for an amendment to extend the lease agreement for four (4)
additional five-year periods, beginning January 1, 2016 and ending December 31, 2035.
Attached is the First Amendment to Tower Lease Agreement that the City Attorney has reviewed and
AT&T has approved and executed. This Amendment includes the following notable changes to the
original Lease Agreement with AT&T:
Annual rent increase will be 5% beginning January 1, 2016. The annual rent increase in the original
lease was 4% or CPI, whichever was greater.
Article 4 has been modified to include language on indemnification and liability, and to increase
the insurance amount from $1 million to $4 million.
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 New Cingular Wireless PCS, LLC (AT&T).
G:\ANTENNAS\AT&T\LEASE AGREEMENT - 01ATT2000N First Amendment.docx
FIRST AMENDMENT TO TOWER LEASE AGREEMENT
THIS FIRST AMENDMENT TO TOWER LEASE AGREEMENT (“Amendment”) is
entered into on this ________ day of __________________________, 2015 (the “Effective
Date”), by and between CITY OF ROSEMOUNT, a Minnesota municipal corporation (“Lessor”), and
New Cingular Wireless PCS, LLC, a Delaware limited liability company, successor by merger with
AT&T WIRELESS SERVICES OF MINNESOTA, INC., a Nevada corporation (“Lessee”).
RECITALS
WHEREAS, Lessor and Lessee (or their predecessors in interest) entered into that Tower
Lease Agreement dated May 15, 2000 (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”), as further
described on Exhibit A attached hereto; 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 3, Section 3.01 is amended by the addition of the following new (third) paragraph:
“Upon expiration of the Extension Period on December 31, 2015, this Agreement shall be
automatically extended, in accordance with Section 3.03 herein, for up to four (4) additional
periods of five (5) years each beginning on January 1st following the expiring term.”
2. Article 3, Section 3.02 is deleted and the following substituted therefor:
“3.02. RENT. Rent for the year 2015 has been paid in full. Rent for the year 2016
shall be Twenty-One Thousand Eight Hundred Nineteen and 12/100 Dollars ($21,819.12)
for the entire year.
Thereafter, rent shall be increased annually on January 1st of each subsequent year,
commencing January 1, 2017, for as many years as this Lease continues to be in effect, by
an amount equal to five percent (5%).
Such rent shall be paid annually, in advance to the City of Rosemount or to such other
person, firm, or place as the Lessor may, from time to time, designate in writing on or
before January 5th of each year in which this Lease is in effect.”
G:\ANTENNAS\AT&T\LEASE AGREEMENT - 01ATT2000N First Amendment.docx
3. Article 4, Section 4.01 is deleted and the following substituted therefor:
“4.01. LESSEE’S INSURANCE. During the term of this Agreement, Lessee will
carry, at its own cost and expense, the following insurance: (i) workers’ compensation
insurance as required by law; and (ii) commercial general liability (CGL) insurance with
respect to its activities on the Property, such insurance to afford protection of Four
Million Dollars ($4,000,000) per occurrence and in the aggregate, based on Insurance
Services Office (ISO) Form CG 00 01, or a substitute form providing substantially
equivalent coverage, provided that such coverage shall not exclude pollution, mobile
equipment or damage to property leased by Lessee. Lessee’s CGL insurance shall contain
a provision including Lessor as an additional insured. Notwithstanding the forgoing,
Lessee may, in its sole discretion, self-insure any of the required insurance under the same
terms as required by this Agreement provided that that Lessee (i) provides Lessor with
notice of its intent to self-insure; (ii)furnishes a Self-Insured Certificate of Insurance
evidencing the types of coverage and limits required; (iii) uses a third party administrator
to manage all self-insured claims; (iv) maintains sufficient capital reserves as audited
annually by Ernst & Young, or any successor auditing company; and (v) issues self-insured
waiver of subrogation and additional insured endorsements. In the event Lessee elects to
self-insure its obligation under this Agreement to include Lessor as an additional insured,
the following conditions apply:
(i) Lessor shall promptly and no later than thirty (30) days after notice thereof
provide Lessee with written notice of any claim, demand, lawsuit, or the like for which it
seeks coverage pursuant to this Section and provide Lessee with copies of any demands,
notices, summonses, or legal papers received in connection with such claim, demand,
lawsuit, or the like;
(ii) Lessor shall not settle any such claim, demand, lawsuit, or the like without the
prior written consent of Lessee; and
(iii) Lessor shall fully cooperate with Lessee in the defense of the claim, demand,
lawsuit, or the like.”
4. Article 4 is amended by the addition of a new Section 4.06 as follows:
“4.06 INDEMNIFICATION. Nothing herein shall be deemed a waiver by
Lessor of the limitations on liability set forth in Minnesota Statutes, Chapter 466. Each
Party shall indemnify and hold the other harmless against any claim of liability or loss from
personal injury or property damage resulting from or arising out of the negligence or willful
misconduct of the indemnifying Party, its employees, contractors or agents, except to the
extent such claims or damages may be due to or caused by the negligence or willful
misconduct of the other Party, or its employees, contractors or agents.”
5. Article 4 is amended by the addition of a new Section 4.07 as follows:
“4.07. LIMITATION ON LIABILITY. Except for indemnification, neither Party
shall be liable to the other, or any of their respective agents, representatives, employees for
any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive,
indirect, special or consequential damages, loss of data, or interruption or loss of use of
G:\ANTENNAS\AT&T\LEASE AGREEMENT - 01ATT2000N First Amendment.docx
service, even if advised of the possibility of such damages, whether under theory of
contract, tort (including negligence), strict liability or otherwise.”
6. Article 6.06 is deleted and the following substituted therefor:
"NOTICES. All notices, requests, demands and communications hereunder will be given by
first class certified or registered mail, return receipt requested, or by a nationally recognized
overnight courier, postage prepaid, to be effective when properly sent and received, refused or
returned undelivered. Notices will be addressed to the parties as follows:
If to Lessee:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: MNL03132;
Cell Site Name: ROSEMOUNT (MN);
FA No.: 10094902
575 Morosgo Drive NE
Atlanta, GA 30324
With a copy to AT&T Legal at:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Department
Re: Cell Site #: MNL03132;
Cell Site Name: ROSEMOUNT (MN);
FA No.: 10094902
208 S. Akard Street
Dallas, TX 75202-4206
And as to Lessor:
City of Rosemount
Attn: Christine Watson
2875 145th Street West
Rosemount, MN 55068
Either party hereto may change the place for the giving of notice to it by thirty (30) days prior
written notice to the other as provided herein."
G:\ANTENNAS\AT&T\LEASE AGREEMENT - 01ATT2000N First Amendment.docx
7. Article 6.14 paragraph E) is deleted and the following substituted therefor:
“E) The rights of the Lessee under this Agreement are subject and subordinate to the rights
of the following lessees:
o Sprint Spectrum Realty Company, LP under that certain Tower Lease Agreement by
and between the City of Rosemount and Sprint Spectrum Realty Company, LLC
dated February 1, 1997 and amended January 1, 2013.
Lessee acknowledges receipt of a copy of said Tower Lease Agreement.”
8. Article 6.14 of the Agreement is amended to add the following paragraphs:
“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 a minimum of two and one-half (2.5) hours for each call out).
Lessee will pay charges within forty-five (45) days of receipt of the invoice.
N) Lessee will provide twenty-four (24)-hour notice to Lessor of any on-site routine
maintenance that will involve Lessee’s personnel or equipment at the water tower location.
Notice must be given by phone to the Rosemount Public Works Department at 651-322-
2022.”
9. The “Sketch and Description of the Property” attached to the Lease as part of Exhibit A are
deleted, and the site plans attached as Exhibit A-1 are substituted therefore.
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.
[SIGNATURES ON FOLLOWING PAGE]
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
G:\ANTENNAS\AT&T\LEASE AGREEMENT - 01ATT2000N First Amendment.docx
EXHIBIT A-1
Description of the Premises:
Please see attached drawing consisting of one (1) page.
Legal Description of the Property:
G:\ANTENNAS\AT&T\LEASE AGREEMENT - 01ATT2000N First Amendment.docx
PARCEL #: 34-03800-12-100 SPACE ABOVE FOR RECORDER’S USE
THIS DOCUMENT WAS DRAFTED BY,
and
WHEN RECORDED RETURN TO:
SAC Wireless
1501 E. Woodfield Road, Suite 300E
Schaumburg, IL 60173
Attn: Vitoria Bryan
MEMORANDUM OF FIRST AMENDMENT TO TOWER LEASE AGREEMENT
This Memorandum of First Amendment to Lease is entered into this _______ day of
_________________________, 2015, 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 New Cingular Wireless PCS, LLC, a Delaware limited liability
company, successor by merger to AT&T WIRELESS SERVICES OF MINNESOTA, INC., a Nevada
corporation (“Lessee”), whose mailing address for notices is 575 Morosgo Drive NE, Atlanta, GA
30324.
WHEREAS, Lessor and Lessee (or their predecessors in interest) entered into that certain
Tower Lease Agreement dated May 15, 2000 (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”).
WHEREAS, pursuant to that certain First Amendment to Tower Lease Agreement
executed on __________________________, 2015 (the “First Amendment”), whereby 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 current renewal term of the Agreement
expires on December 31, 2015 (“Current Term”), and Lessee has the right to renew the term of the
G:\ANTENNAS\AT&T\LEASE AGREEMENT - 01ATT2000N First Amendment.docx
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.
[SIGNATURES TO APPEAR ON THE FOLLOWING PAGE]
G:\ANTENNAS\AT&T\LEASE AGREEMENT - 01ATT2000N First Amendment.docx
LESSOR ACKNOWLEDGMENT
STATE OF Minnesota )
) ss:
COUNTY OF Dakota )
On ___________________________________________, 2015, 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)
G:\ANTENNAS\AT&T\LEASE AGREEMENT - 01ATT2000N First Amendment.docx
EXHIBIT 1
Legal Description
Street Address: 14950 Chippendale Avenue, Rosemount, MN 55068
Parcel #: 34-03800-12-100
That certain Premises (and access and utility easements) on a portion of the Property described as
follows:
SITE PLAN