move to approve the attached AT&T lease contract.

Transcription

1 TO : BOARD OF DIRECTORS FROM : GARY PLATT, EXECUTIVE DIRECTOR BUSINESS AND OPERATIONS SUBJECT : AT&T CELL TOWER RENTAL AGREEMENT DATE : MAY 20, 2008 TYPE : ACTION NEEDED The purpose of this memo is to recommend board approval of a change to our contract with AT&T for the lease of space at the Stanwood High School stadium for a cell tower. (Not to be confused with Verizon s recent request to also replace an existing light pole with a tower at the stadium.) In June 2005, the board approved an agreement with Cingular/ATT to construct a cell tower on the SHS stadium site. The agreement contained provisions for annual rental payments on 5-year renewable terms. The agreement requires 30 days prior notice of termination. The district also has a similar agreement with T-Mobile. Under the agreement with AT&T, the district owns the tower (pole) and the equipment storage building. The tower provides antenna space for our bus radio repeater system. Having discussed the matter with our attorney and having reconsidered all of the issues, I am recommending the board approve the attached contract amendment. I feel that even though the rental amount is lower, the advantage of having the contract locked for 11 years (ten years plus one more year notice before termination) with guaranteed rent payments is an advantage. Recommendation: We recommend the board move to approve the attached AT&T lease contract.

2 FIRST AMENDMENT TO SITE LEASE AGREEMENT THIS FIRST AMENDMENT TO SITE LEASE AGREEMENT ( Amendment ) dated as of the later date below is by and between Stanwood-Camano School District No. 401, a municipal corporation of the state of Washington, having a mailing address at Pioneer Highway, Stanwood, WA (hereinafter referred to as Lessor ) and New Cingular PCS, LLC, a Delaware limited liability company having a mailing address at 6100 Atlantic Boulevard, Norcross, GA (hereinafter referred to as Lessee ). WHEREAS, Lessor and Lessee entered into a Site Lease Agreement dated July 25, 2005; whereby Lessor leased to Lessee certain Premises, therein described, that are a portion of the Property located at nd Street Northwest, Stanwood, WA ("Lease"); and WHEREAS, Lessor and Lessee desire to extend the term of the Lease; and and WHEREAS, Lessor and Lessee desire to modify, as set forth herein, the Rent payable under the Lease; WHEREAS, Lessor and Lessee desire to modify, as set forth herein, the Lessee s obligations to pay Rent to Lessor for a Rent Guarantee Period; and WHEREAS, Lessor and Lessee, in their mutual interest, further wish to amend the Lease as set forth below. 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. Term. The Term of the Lease shall be amended to provide that the Lease has a new initial term of 60 months ( New Initial Term ), commencing on August 1, The Term will be automatically renewed for up to 5 additional 60 month terms (each an Extension Term ) without further action by Lessee. Hereafter, the defined term Term shall include the New Initial Term and any applicable Extension Term. 2. Termination. In addition to any rights that may exist in the Lease, after the Rent Guarantee Period, as defined below, Lessee may terminate the Lease at any time with 365 days prior written notice to Lessor for any or no reason. 3. Modification of Rent. Commencing on August 1, 2008, the Rent payable under the Lease shall be $12, per year, and shall continue during the Term, subject to adjustment, if any, as provided below.

3 4. Modification of Lessee s Obligation to Pay Rent Guarantee. Notwithstanding Lessee s obligations to pay Rent set forth under the Lease, for a 120 month period commencing August 1, 2008 and ending July 31, 2018 ( Rent Guarantee Period ), Lessee s obligation to pay Rent is guaranteed and such obligation will not be subject to offset or cancellation by Lessee. Notwithstanding the foregoing, if Lessor exercises any of Lessor s rights to terminate the Lease, if any, Lessee will be released from any and all of its obligations to pay Rent during the Rent Guarantee Period as of the effective date of the termination. In addition, Lessee shall be released from any and all of its obligations to pay Rent during the Rent Guarantee Period if the following shall occur: (a) Lessor is in breach of the Lease, including but not limited to any default under the terms of the Lease beyond any applicable grace and cure period; (b) there is a foreclosure of the Property; (c) the Lessor shall require Lessee to relocate Lessee s equipment and facilities to a location that is not acceptable to Lessee in its reasonable business judgment if allowed for in the Lease, or (d) any existing government permits and/or approvals cannot be obtained or maintained, at no fault of the Lessee. If this Lease is further modified in the future with an obligation for Lessee to pay additional Rent, the payment of Rent guarantee established in this paragraph will not be diminished or limited, but such Rent guarantee will not extend to that future additional Rent obligation. 5. Future Rent Increase / Extension Term Increase. The Lease is amended to provide that commencing on August 1, 2013, Rent shall increase by twelve and one-half percent (12.50%) and at the beginning of each Extension Term, as applicable. 6. Acknowledgement. Lessor acknowledges that: 1) this Amendment is entered into of the Lessor s free will and volition; 2) Lessor has read and understands this Amendment and the underlying Lease and, prior to execution of the Amendment, was free to consult with counsel of its choosing regarding Lessor s decision to enter into this Amendment and to have counsel review the terms and conditions of the Amendment; 3) Lessor has been advised and is informed that should Lessor not enter into this Amendment, the underlying Lease between Lessor and Lessee, including any termination or non-renewal provision therein, would remain in full force and effect. 7. Notices. Section 17(a) 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 effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the parties as follows. As to Lessee, Cell Site # , Cell Site Name WA , 6100 Atlantic Boulevard, Norcross, Georgia 30071, with a copy to Attn.: Legal Department, New Cingular Wireless PCS, LLC, Re: Cell Site # , Cell Site Name WA , (WA), Fixed Asset No: , 5 Wood Hollow Drive, Parsippany, NJ 07054; and as to Lessor, Stanwood-Camano School District No. 401, Pioneer Highway, Stanwood, WA 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. 8. Other Terms and Conditions Remain. In the event of any inconsistencies between the Lease and this Amendment, the terms of this Amendment shall control. 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.

4 9. Capitalized Terms. All capitalized terms used but not defined herein shall have the same meanings as defined in the Lease. IN WITNESS WHEREOF, the parties have caused their properly authorized representatives to execute and seal this Amendment on the date and year below. LESSOR: Stanwood-Camano School District No. 401, a municipal corporation of the state of Washington LESSEE: New Cingular Wireless PCS, LLC By: AT&T Mobility Corporation Its. Manager By: By: Name: Name: Title: Title: Date: Date: WITNESSED BY: By: By: Name: Name: Title: Title:

5 LESSOR ACKNOWLEDGEMENT CORPORATE ACKNOWLEDGEMENT STATE OF ) ) COUNTY OF ) I CERTIFY that on, 200, [name of representative] personally came before me and acknowledged under oath that he or she: (a) is the [title] of [name of corporation], the corporation named in the attached instrument, (b) was authorized to execute this instrument on behalf of the corporation and (c) executed the instrument as the act of the corporation. Notary Public: My Commission Expires:

6 LESSEE ACKNOWLEDGEMENT STATE OF ) ) SS. COUNTY OF ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the of New Cingular Wireless PCS, LLC, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED:. Notary Seal (Signature of Notary) (Legibly Print or Stamp Name of Notary) Notary Public in and for the State of My appointment expires: