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Home My WebLink About11-05-2013 c5 approve first amendment to telecommunications lease santa rosa pk FROM: Wayne Padilla, Director of Finance & Information Technology SUBJECT: APPROVE FIRST AMENDMENT TO TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK RECOMMENDATION Approve the First Amendment to the Telecommunications Facility Lease and authorize the City Manager to execute the Amendment and any related documents on behalf of the City. DISCUSSION Background In May 2011, the City and AT&T entered into a lease agreement providing access to the cell tower property located at 190 Santa Rosa Street in exchange for annual rents of $27,600.00 AT&T now wishes to make changes to that lease agreement with regard to the amount of rent paid and by changing their contact information for the service of notices regarding the lease terms. Other minor changes to the original lease terms are also proposed. Earlier this year, staff from AT&T contacted the city regarding their need to replace the 12 existing antennas on the leased cell tower with new antennas and to add 6 Remote Radio Units (RRUs) to the tower array. In exchange for permission to add the RRUs, AT&T has offered to increase the annual rents by $4,800.00 which is a fair amount according to an independent expert in telecommunications. In addition to amending the rent amount, AT&T has also requested a number of minor amendments to the original lease. These include changing the contact information for the delivery of notices related to the lease agreement, and updating the legal description of the property being leased. FISCAL IMPACT If approved, the annual rents derived from the lease would increase by $4,800 per year. ALTERNATIVES The City Council could reject the proposed lease changes and direct staff to work with AT&T to renegotiate the rental amount. Staff does not recommend this option since it has received an outside opinion from an independent telecommunications legal advisor who has stated that the rent increase offered is a fair amount in light of the additional equipment that is being added to the cell tower. ATTACHMENTS 1. First Amendment to the Telecommunications Lease 2. Work Diagram and location exhibits Meeting Date Item Number 11-05-13 C5 - 1 Telecommunications Lease Amendment (Santa Rosa Park) Page 2 T:\council agenda reports\2013\11-05\Telecommunications Lease Amendment C5 - 2 Attachment 1 Northern California Market Only 07-2011 Amendment Market: Los Angeles Cell Site Number: SBL051 Cell Site Name: Santa Rosa Park (CA) Fixed Asset Number: 10145610 FIRST AMENDMENT TO TELECOMMUNICATIONS FACILITIES LEASE AT SANTA ROSA PARK THIS FIRST AMENDMENT TO TELECOMMUNICATIONS FACILITIES LEASE AT SANTA ROSA PARK (“Amendment”), dated as of the latter of the signature dates below, is by and between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city, having a mailing address of 990 Palm Street, San Luis Obispo, CA 93401 (“Lessor”) and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a mailing address of 575 Morosgo Drive NE, Suite 13F, West Tower, Atlanta, GA 30324 (“Lessee”). WHEREAS, Lessor and Lessee entered into a Telecommunications Facilities Lease at Santa Rosa Park dated May 13, 2011, whereby Lessor leased to Lessee certain Premises, therein described, that are a portion of the Property located at 190 Santa Rosa Park, San Luis Obispo, CA ("Lease"); and WHEREAS, Lessee desires to change, modify or relocate the Communication Facility, which Lessor is willing to approve; and WHEREAS, Lessor and Lessee desire to adjust the Rent in conjunction with the modifications to the Lease contained herein; and WHEREAS, Lessor and Lessee desire to amend the Lease to modify the notice section thereof; and WHEREAS, the Parties desire to facilitate any current or future additions, modifications and/or replacement of equipment in order to be in compliance with any current or future federal, state or local regulations related to emergency 911 communication services; and WHEREAS, Lessor and Lessee, in their mutual interest, wish to amend the Lease as set forth below accordingly. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee agree as follows: 1. New Exhibit B-1. Exhibit B-1 hereby replaces Exhibit B to the Lease. 2. Rent. Commencing on the first day of the month following the date that Lessee commences construction of the modifications set forth in this Amendment, the annual Rent shall be increased by Four Thousand Eight Hundred and No/100 Dollars per year, prorated to Four Hundred and No/100 Dollars ($400.00) per month for partial year, and subject to further adjustments as provided in the Lease. Upon Lessee’s removal of additional antennas, Rent will revert to the original rate, subject to adjustments as provided in the Lease, upon thirty (30) days’ prior written notice to Lessor. Within forty-five (45) days after the start of construction, Lessee shall remit to Lessor the deficiency of such annual Rent payment. 3. Notices. Section 19 of the Lease is hereby deleted in its entirety and replaced with the following: 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 C5 - 3 Attachment 1 Northern California Market Only 07-2011 Amendment effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the parties as follows. If to Lessor: City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 If to Lessee: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site #: SBL051 Cell Site Name: Santa Rosa Park (CA) Fixed Asset No: 10145610 575 Morosgo Drive NE Suite 13-F, West Tower Atlanta, GA 30324 With a copy to: New Cingular Wireless PCS, LLC Attn: AT&T Legal Department - Network Re: Cell Site #: SBL051 Cell Site Name: Santa Rosa Park (CA) Fixed Asset No: 10145610 208 S. Akard Street Dallas, Texas, 75202-4206 The copy sent to the AT&T Legal Department is an administrative step which alone does not constitute legal notice. 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. 4. Emergency 911 Service. Subject to all other terms and conditions in the Lease and this Amendment, Lessor agrees to cooperate with Lessee for the addition of equipment to be in compliance with any current or future federal, state or local mandated application, including but not limited to emergency 911 communication services. Lessor’s consent to such additions shall not be unreasonably withheld. 5. Other Terms and Conditions Remain. Except as expressly set forth in this Amendment, the Lease otherwise is unmodified and remains in full force and effect. Each reference in the Lease to itself shall be deemed also to refer to this Amendment. 6. Capitalized Terms. All capitalized terms used but not defined herein shall have the same meanings as defined in the Lease. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] C5 - 4 Attachment 1 Northern California Market Only 07-2011 Amendment IN WITNESS WHEREOF, the parties have caused this Amendment to be effective as of the last date written below. “Lessor” City of San Luis Obispo, a municipal corporation and charter city By: _________________________ Print Name: _________________________ Its: _________________________ Date: _________________________ “Lessee” New Cingular Wireless PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: _________________________ Print Name: _________________________ Its: _________________________ Date: _________________________ [ACKNOWLEDGMENTS APPEAR ON THE FOLLOWING PAGE] C5 - 5 Attachment 1 Northern California Market Only 07-2011 Amendment LESSOR ACKNOWLEDGMENT State of California County of San Luis Obispo) On ________________________________ before me, ___________________________________________________, (insert name and title of the officer) 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 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. 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 __________________________________ (Seal) LESSEE ACKNOWLEDGMENT State of California County of ___________________) On ________________________________ before me, ___________________________________________________, (insert name and title of the officer) 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 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. 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 __________________________________ (Seal) C5 - 6 Attachment 1 Northern California Market Only 07-2011 Amendment EXHIBIT B-1 DESCRIPTION OF PREMISES Page ___ of ___ to the First Amendment to Telecommunications Facilities Lease at Santa Rosa Park dated ________________, 2013, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city, as Lessor, and New Cingular Wireless PCS, LLC, a Delaware limited liability company, as Lessee. The Premises are described and/or depicted as follows: Property Legal Description: Real property in the City of San Luis Obispo, County of San Luis Obispo, State of California, described as follows: PARCEL NO. 1: ALL OF TRACT NO. 34 IN THE TOWN OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, ACCORDING TO MAP RECORDED IN BOOK 5 OF MAPS, PAGE 55, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL NO. 2: THAT PORTION OF BLOCK 82 IN THE CITY OF SAN LUIS OBISPO, AND THAT PORTION OF THE NORTHWEST º OF SECTION 26, TOWNSHIP 30 SOUTH, RANGE 12 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, BEING PARCEL "B" OF PARCEL MAP NO. SLO-78-221, RECORDED FEBRUARY 21, 1980 IN BOOK 29, PAGE 7 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL NO. 3: THAT PORTION OF BLOCK 82 OF THE TOWN OF SAN LUIS OBISPO, IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, AS DELINEATED ON THE MAP FILED IN BOOK "A", PAGE 168 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM PARCEL "B" OF PARCEL MAP NO. SLO-78-221, IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, RECORDED FEBRUARY 21, 1980 IN BOOK 29, PAGE 7 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPTING THEREFROM ALL OF TRACT NO. 34 IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, ACCORDING TO MAP RECORDED IN BOOK 5 OF MAPS, PAGE 55, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA, BY GRANT DEED RECORDED JUNE 27, 1967, INSTRUMENT NO. 12123, IN BOOK 1439, PAGE 574 OF OFFICIAL RECORDS. APN: 001-031-028 Lease Area Sketch or Survey: 1-Page Lease Exhibit to be provided. Notes: 1. This Exhibit may be replaced by a land survey and/or construction drawings of the Premises once received by Lessee. 2. Any setback of the Premises from the Property’s boundaries shall be the distance required by the applicable governmental authorities. 3. Width of access road shall be the width required by the applicable governmental authorities, including police and fire departments. 4. The type, number and mounting positions and locations of antennas and transmission lines are illustrative only. Actual types, numbers and mounting positions may vary from what is shown above. C5 - 7 C5 - 8 C5 - 9 C5 - 10 C5 - 11 C5 - 12 C5 - 13 C5 - 14 C5 - 15 Page intentionally left blank. C5 - 16