Action Officer: Cell Tower Lease Amendment-Crown Castle BU#811907

Transcription

1 ell Tower Lease Amendment-rown astle BU# Briefing Sheet Version: 1 Lead Department: Purchasing & ontracts Action Officer: Stephen Lindsay-Purchasing & ontracts Manager Subject: ell Tower Lease Amendment-rown astle BU# Briefing: 4/8/2014 Public Hearing: None Action: 4/22/2014 Item Schedule Schedule 1: Brief twice vote once (six weeks) Schedule 2: Brief once vote once (two weeks) Schedule 3: No briefing required (one week) Select One Updates/History of Briefing: NOT APPLIABLE Executive Summary and Background Information: The Town entered into a lease agreement with New ingular Wireless PS, LL with the original lease agreement date being June 7, The lease will expire May 31, The key terms of that agreement were as follows: Base rate of $ /month with a 3% increase each year Revenue share for carriers was $500/month per carrier New ingular Wireless PS, LL has requested 10 additional years for the lease via an amendment to the original lease agreement. Staff is requesting Town ouncil adopt a resolution authorizing the Town to extend the current lease agreement with this First Amendement to the lease for the purpose of operating a cell phone tower on land located at 414 Aviation Parkway. The key terms of the negotiated agreement are as follows: Base rate as of June 1, 2014 will be $1,916.00/month, a 3% increase from our current rate of $1, Revenue share for the 3 carriers as of June 1, 2014 will be $633.38/month per carrier, a 3% increase from our current rate of $ Each additional year after, the rent and revenue share would be subject to a 3% rate increase Within 30 days of execution of the 1 st Amendment, the Town will receive a one-time lump sum payment of $30,000 as a signing bonus Updated: April 2, of 4

2 ell Tower Lease Amendment-rown astle BU# Staff researched other municipalities lease agreements with ell Towers & ompanies and found the lease terms to be comparable excluding the signing bonus, as that information was not provided by other municipalities as to whether or not they received one. Potential Options: Approve the agreement the First amendment to the original lease. Not approve the amendment and terminate the lease agreement. Attachments: ATTH 1 First Amendment to the lease agreement (BU ) Staff Recommendation: Staff recommends the Town ouncil approve the first amendment to the lease agreement. Advisory Board/ommittee Review: NONE Board/ommittee Recommendation: NOT APPLIABLE Advisory Board/ommittee Meeting Date and Minutes: NOT APPLIABLE Meeting Perspectives and Goals Adopted by the ouncil: Perspectives Goals Serve the ommunity Promote an Environmentally Sensitive & Livable ommunity Provide a Safe ommunity Deliver Quality Services Foster a Healthy ommunity Run the Operations Enhance ommunity Preparedness & Responsiveness Maximize Partnership Opportunities Provide ourteous & Responsive ustomer Service Model a Positive Town Image Deliver Efficient Services ultivate ommunity Involvement & Access Manage the Resources Maintain Fiscal Strength Maximize Utilization & Resources Invest in Infrastructure & Transportation Updated: April 2, of 4

3 Develop Personnel Perspectives and Goals Additional omments: NONE Resource Impact: Staff time required if item is approved: Other Potential Impacts: NONE APPLIABLE ell Tower Lease Amendment-rown astle BU# Develop a Skilled & Diverse Workforce reate a Positive & Rewarding Work ulture Low Staff oordination: heck the box for those required to comment on left. To comment-click in the box and select. (Update is used when information has significantly changed from the first briefing.) Required Staff Member Briefing Update Town Manager Agree No omment Town lerk Reviewed No omment Senior Director Business Management Reviewed No omment Budget and Analysis Manager No omment No omment Finance Officer Reviewed No omment Information Technology Director Reviewed No omment ontracting and Purchasing Manager Originator No omment Senior Director Development Services Reviewed No omment Planning Director Reviewed No omment Town Engineer No omment No omment Building odes Administrator No omment No omment Economic Development No omment No omment Senior Director ommunity Services Agree No omment Risk Manager/Safety Officer No omment No omment Police hief No omment No omment Fire hief No omment No omment Parks & Recreation Director No omment No omment Public Works Director No omment No omment Public Information Officer Reviewed No omment Town Attorney Reviewed No omment Human Resources Manager No omment No omment Disagree or comment, explain: Public Information Plan: Public Hearing (Required by GS) Newspaper Notice (Required by GS) Public Hearing (Not Required by GS) Newspaper Notice (Not Required by GS) Updated: April 2, of 4

4 Public Forum/Input Session Morrisville onnection Social Media (Twitter, Facebook, etc.) Special Mailing Flyers Posted Automated Phone all Other: ell Tower Lease Amendment-rown astle BU# Press Release E-News Distribution Website Notice Banners Posted Survey None Required Updated: April 2, of 4

5 FIRST AMENDMENT TO LEASE AGREEMENT (BU ) THIS FIRST AMENDMENT TO LEASE AGREEMENT ( First Amendment ) is made effective on June 1, 2014, by and between THE TOWN OF MORRIS VILLE, a North arolina municipal corporation ( Landlord ), with a mailing address of P.O. Box 166, 100 Town Hall Drive, Morrisville, North arolina 27560, and NEW INGULAR WIRELESS PS, LL, a Delaware limited liability company, and the successor by merger with BellSouth Personal ommunications LL, a Delaware limited liability company, dated December 31, 2004, for itself and as general partner of Bellsouth arolinas PS, L.P., a Delaware limited partnership ( Tenant ), with a mailing address of New ingular Wireless PS, LL, Suite 13-F West Tower, 575 Morosgo Drive, Atlanta, GA WHEREAS, Landlord and Tenant entered into a Lease Agreement dated June 7, 2006 (the Agreement ), whereby Landlord leased to Tenant a portion of land being described as a 2,271 square feet portion of that property (said leased portion being the Premises ) located at 414 Aviation Parkway (Tax Parcel # ), Morrisville, Wake ounty, North arolina, and being further described in Book 2979, Page 101 in the Wake ounty Register of Deeds ( Register of Deeds ), together with those certain access, utility and/or maintenance easements and/or rights of way granted in the Agreement. Notice of the Agreement is provided by, and the Premises is described in that certain Memorandum of Lease ( Memorandum ), dated May 22, 2006, and recorded on June 13, 2006, in Book 12006, Page 2229 in the Register of Deeds; and WHEREAS, the Agreement has an original term, including an Extension Term (as defined in the Agreement), that will expire on May 31, 2016 ( Original Term ), and Landlord and Tenant now desire to amend the terms of the Agreement to extend the Agreement beyond the Original Term, and to make other changes. NOW THEREFORE, in exchange for the mutual promises contained herein, Landlord and Tenant agree to amend the Agreement as follows: 1. Any capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement. The recitals in this First Amendment are incorporated herein by this reference. 2. Section 3(b) of the Agreement is deleted in its entirety and replaced with the following: (b) This Agreement will automatically renew for one (1) five (5) year term, followed by one (1) eight (8) year term (collectively, the Extension Term ), upon the same terms and conditions as provided in this Agreement. Unless sooner terminated as may be provided for in this Agreement, the final expiration date shall be May 31, Section 16 of the Agreement is amended by adding the following sentences to the end thereto: BU:

6 The additional rent referenced above will hereinafter be referred to as the Additional Rent. ommencing on June 1, 2014, and every year thereafter during the Term (each an Adjustment Date ), the Additional Rent shall increase by an amount equal to three percent (3%) of the monthly Additional Rent in effect for the month immediately preceding the Adjustment Date. 4. Section 17 of the Agreement is amended by deleting Tenant s notice address and inserting the following: Tenant: With a copy to: With a copy to: AT&T Network Real Estate Administration Re: # Suite 13-F West Tower 575 Morosgo Drive Atlanta, GA AT&T Legal Department- Network Attn: Network ounsel Re: # S. Akard Street Dallas, Texas, rown astle South LL do rown astle USA Inc. E. Blake Hawk, General ounsel Attn: Legal-Real Estate Department 2000 orporate Drive anonsburg, PA As additional consideration for amending the Agreement in accordance with this First Amendment, Tenant agrees to pay to Landlord Thirty Thousand and No/100 Dollars ($30,000.00) within thirty (30) days of the full execution of this First Amendment by both parties. Landlord acknowledges that the Signing Bonus may be paid by rown astle South LL, a Delaware limited liability company ( rown ), on behalf of Tenant. By signing this Amendment, Landlord agrees to accept the Signing Bonus from rown, and Landlord further agrees that the acceptance by Landlord of the Signing Bonus will be a complete accord and satisfaction of that said obligation. Upon payment of the Signing Bonus, Landlord waives and releases Tenant and rown from any and all claims Landlord may have pursuant to the Agreement (or otherwise) related to or arising out of the Signing Bonus. 6. Representations, Warranties and ovenants of Landlord. Landlord represents, warrants and covenants to Tenant as follows: (a) Landlord is duly authorized to and has the full power and authority to enter into this First Amendment and to perform all of Landlord s obligations under the Agreement as amended hereby. BU:

7 (b) Except as expressly identified in this First Amendment, Landlord owns the Premises free and clear of any mortgage, deed of trust, or other lien secured by any legal or beneficial interest in the Premises, or any right of any individual, entity or governmental authority arising under an option, right of first refusal, lease, license, easement or other instrument other than any rights of Tenant arising under the Agreement as amended hereby and the rights of utility providers under recorded easements. (c) As of the effective date of this First Amendment, Tenant is not in default under the Agreement, and to Landlord s knowledge, no event or condition has occurred or exists which, with notice or the passage of time or both, would constitute a default by Tenant under the Agreement. (d) Landlord agrees to execute and deliver such further reasonable documents and provide such further reasonable assurances as may be requested by Tenant to carry out and evidence the full intent and purpose of the parties under the Agreement as amended hereby, and ensure Tenant s continuous and uninterrupted use, possession and quiet enjoyment of the Premises under the Agreement as amended hereby. 7. IRS Form W-9. Landlord agrees to provide Tenant with a completed IRS Form W-9, or its equivalent, upon execution of this First Amendment and at such other times as may be reasonably requested by Tenant. In the event the Premises is transferred, the succeeding Landlord shall have a duty at the time of such transfer to provide Tenant with a completed IRS Form W-9, or its equivalent, and other related paper work to effect a transfer in rent to the new Landlord. 8. In all other respects, the remainder of the Agreement shall remain in full force and effect. Any portion of the Agreement that is inconsistent with this First Amendment is hereby amended to be consistent with this First Amendment. This instrument may be executed in any number of counterparts, each of which shall be deemed an original and which together shall constitute one and the same instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANKI BU:

8 IN WITNESS WHEREOF, Landlord and Tenant have signed this instrument under seal, and have caused this First Amendment to be duly executed on the day and year first written above. LANDLORD: THE TOWN OF MORRIS VILLE, a North arolina municipal corporation By: Print Name: Title:_ (SEAL) BU:

9 l IN WITNESS WHEREOF, Landlord and Tenant have signed this instrument under seal, and have caused this First Amendment to be duly executed on the day and year first written above. TENANT: New ingular Wireless PS, LL, a Delaware limited liability company By: AT&T Mobility orporation, a Delaware corporation Its: Manager (77c (SEAL) Nellie Jabbari Area Manager Real Estate Transactions BU:

10 Prepared by: Parker Poe Adams & Bernstein LLP P.O. Box 389 Raleigh, N Return to: rown astle 1220 Augusta, Suite 500 Houston, TX ross Index with Book 12006, Page 2229 Tax Map #: MEMORANDUM OF FIRST AMENDMENT TO LEASE AGREEMENT THIS MEMORANDUM OF FIRST AMENDMENT TO LEASE AGREEMENT ( Amended Memorandum ) is made effective on June 1, 2014, by and between THE TOWN OF MORRIS VILLE, a North arolina municipal corporation ( Landlord ), with a mailing address of P.O. Box 166, 100 Town Hall Drive, Morrisville, North arolina 27560, and NEW INGULAR WIRELESS PS, LL, a Delaware limited liability company, and the successor by merger with BellSouth Personal ommunications LL, a Delaware limited liability company, dated December 31, 2004, for itself and as general partner of Bellsouth arolinas PS, L.P., a Delaware limited partnership ( Tenant ), with a mailing address of New ingular Wireless PS, LL, Suite 13-F West Tower, 575 Morosgo Drive, Atlanta, GA WHEREAS, Landlord and Tenant entered into a Lease Agreement dated June 7, 2006 (the Agreement ), whereby Landlord leased to Tenant a portion of land being described as a 2,271 square feet portion of that property (said leased portion being the Premises ) located at 414 Aviation Parkway (Tax Parcel # ), Morrisville, Wake ounty, North arolina, and being further described in Book 2979, Page 101 in the Wake ounty Register of Deeds ( Register of Deeds ), together with those certain access, utility and/or maintenance easements and/or rights of way granted in the Agreement. Notice of the Agreement is provided by, and the Premises is described in that certain Memorandum of Lease ( Memorandum ), dated BU:

11 May 22, 2006, and recorded on June 13, 2006, in Book 12006, Page 2229 in the Register of Deeds; and WHEREAS, the Agreement has an original term, including an Extension Term (as defined in the Agreement), that will expire on May 31, 2016 ( Original Term ), and Landlord and Tenant now desire to amend the terms of the Agreement to extend the Agreement beyond the Original Term, and to make other changes; and WHEREAS, Landlord and Tenant made and entered into a First Amendment to Lease Agreement of even date herewith ( First Amendment ) and pursuant to the terms of, and for that consideration recited in, the First Amendment, the parties wish to hereby amend certain provisions of the Lease, and provide this Amended Memorandum as notice thereof, as follows: 1. Landlord does hereby lease unto Tenant, its successors and assigns, the Premises for eight (8) years beyond the Original Term, expiring on May 31, 2024, unless sooner terminated as provided in the Agreement. 2. The description of the Premises is as provided in that Memorandum recorded in the Register of Deeds in Book 12006, Page This Amended Memorandum contains only selected provisions of the First Amendment, and reference is made to the full text of the Agreement and the First Amendment for their full terms and conditions, which are incorporated herein by this reference. Except as otherwise provided in the First Amendment and this Amended Memorandum, the terms and conditions of the Agreement remain in full force and effect. This instrument may be executed in any number of counterparts, each of which shall be deemed an original and which together shall constitute one and the same instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANKI BU:

12 Date: c.. IN WITNESS WHEREOF, Landlord and Tenant have signed this instrument under seal, and have caused this Amended Memorandum to be duly executed on the day and year first written above. LANDLORD: THE TOWN OF MORRIS VILLE, a North arolina municipal corporation By: (SEAL) Print Name: Title: STATE OF OUNTY OF I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: The Town of Morrisville, a North arolina municipal corporation, by, its [SEAL OR STAMPI By: Print Name: Notary Public My ommission Expires: BU:

13 STATEOF Date: IN WITNESS WHEREOF, Landlord and Tenant have signed this instrument under seal, and have caused this Amended Memorandum to be duly executed on the day and year first written above. TENANT: New ingular Wireless PS, LL, a Delaware limited liability company By: AT&T Mobility orporation, a Delaware corporation Its: Manager ByA-L_(;;:t (SEAL) Nellie Jabbari Area Manager Real Estate Transactions OUNTY OF T certify that the following person(s) personally appeared before me this day, each acknowledging to me that she voluntarily signed the foregoing Memorandum of First Amendment to Lease Agreement for the purpose stated therein and in the capacity indicated: New ingular Wireless PS, LL, a Delaware limited liability company, by its Manager, AT&T Mobility orporation, a Delaware corporation, by Nellie Jabbari, its Area Manager Real Estate Transactions. By: Print Name: Notary Public [SEAL OR STAMPI My ommission Expires: / / BU: I I!II,,,, c oc // OTARk. UBL.

14 TOWN OF MORRISVILLE * PO BOX 166 * MORRISVILLE, N RESOLUTION OF THE MORRISVILLE TOWN OUNIL PERTAINING TO THE 10 YEAR EXTENSION OF THE NEW INGULAR WIRLESS PS, LL LEASE FOR THE ELL PHONE TOWER LOATED AT 414 AVIATION PARKWAY WHEREAS, the Town entered into a lease agreement with New ingular Wireless PS, LL on June 7, 2006; and WHEREAS, on May 31, 2016 the current lease will expire; and WHEREAS, New ingular Wireless PS, LL wishes to amend the lease; and WHEREAS, the Town has negotiated with rown astle, the entity authorized to negotiate on behalf of New ingular Wireless PS, LL to amend the current lease: NOW, THEREFORE, BE IT RESOLVED THAT THE MORRISVILLE TOWN OUNIL hereby approves the lease extension for up to ten (10) years with the following terms: Base rate as of June 1, 2014 will be $1,916.00/month, a 3% increase from our current rate of $1, Revenue share for the 3 carriers as of June 1, 2014 will be $633.38/month per carrier, a 3% increase from our current rate of $ Each additional year after, the rent and revenue share would be subject to a 3% rate increase Within 30 days of execution of the 1 st Amendment, the Town will receive a one-time lump sum payment of $30,000 as a signing bonus Adopted this the 22nd day of April ATTEST: Mark Stohlman, Mayor Diana R. Davis, Town lerk Page 1 of 1