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HomeMy WebLinkAboutReso 92-20 Approving the Third Amendment to the PCS Site AgreementReso No. 92-20, Item 4.2, Adopted 09/01/2020 Page 1 of 1 RESOLUTION NO. 92 - 20 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * APPROVING THE THIRD AMENDMENT TO THE PCS SITE AGREEMENT (11600 Shannon Avenue) WHEREAS, on November 6, 2001 the City Council authorized a lease of a small site adjacent to Shannon Community Center for a telecommunications facility; and WHEREAS, on February 3, 2004 the City Council adopted Resolution 19 -04, which accepted the improvements as being complete and adopted the First Amendment to the PCS Site Agreement; and WHEREAS, on November 17, 2009 the City Council adopted Resolution 163 -09, approving the Second Amendment to the PCS Site Agreement which reflected changes in ownership and the sublease to Global Signal Acquisitions III LLC; and WHEREAS, the current Lessee has requested an amendment to the lease to add an additional four five-year automatic renewal terms; and. WHEREAS, in consideration of the addition of renewal terms, the City of Dublin will receive a one-time payment of $10,000 and an increase in the current monthly rent to $2,653. NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of Dublin does hereby approve the Third Amendment to the PCS Site Agreement attached hereto as Exhibit A. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the amendment on behalf of the City of Dublin and make any minor modifications as necessary to carry out the intent of this resolution . PASSED, APPROVED AND ADOPTED this 1st day of September 2020, by the following vote: AYES: Councilmembers Goel, Hernandez, Kumagai and Mayor Haubert NOES: ABSENT: ABSTAIN: Councilmember Josey ____________________________ Mayor ATTEST: _______________________________ City Clerk DocuSign Envelope ID: 32766AF6-6EFB-4ABA-BFA4-8AA444AD1FB0 THIRD AMENDMENT TO PCS SITE AGREEMENT THIS THIRD AMENDMENT TO PCS SITE AGREEMENT (this "Third Amendment") is entered into this day of , 20 , by and between the CITY OF DUBLIN, a municipal corporation ("Lessor" or "Owner"), with a mailing address of 100 Civic Plaza, Dublin, California 94568, and STC FIVE LLC, a Delaware limited liability company, registered in California as TOWER COMPANY FIVE LLC, by and through GLOBAL SIGNAL ACQUISITIONS III LLC, a Delaware limited liability company, its attorney in fact (collectively, "Lessee"), with a mailing address of 2000 Corporate Drive, Canonsburg, Pennsylvania 15317. RECITALS WHEREAS, Lessor and Sprint Spectrum L.P., a Delaware limited partnership ("Original Lessee") entered into a PCS Site Agreement dated November 6, 2001 (the "Original Agreement"), a memorandum of which was recorded in Alameda County, California on November 30, 2001 at Document No. 2001466374, whereby Original Lessee leased certain real property, together with access and utility easements, located in Alameda County, California from Lessor (the "Site"), all located within certain real property owned by Lessor (the "Lessor's Property"); and WHEREAS, the Original Agreement was amended by that certain First Amendment to PCS Site Agreement dated February 6, 2004 (the "First Amendment"), and by that certain Second Amendment to PCS Site Agreement dated November 17, 2009 (the "Second Amendment") (hereinafter the Original Agreement, First Amendment, and Second Amendment are collectively referred to as the "Agreement"); and WHEREAS, STC Five LLC, registered in California as Tower Company Five LLC, is currently the lessee under the Agreement as ultimate successor in interest to the Original Lessee; and WHEREAS, the Site may be used for the purpose of constructing, maintaining and operating a communications facility, including tower structures, equipment shelters, cabinets, meter boards, utilities, antennas, equipment, any related improvements and structures and uses incidental thereto; and WHEREAS, the Agreement had an initial term that commenced on November 6, 2001, and expired on November 5, 2006. The Agreement provides for three (3) extensions of five (5) years (each extension is referred to as a "Renewal Term"), all of which were exercised by Lessee. According to the Agreement, the final Renewal Term expires on November 5, 2021; and Site Name: NORTHWEST DUBLIN Business Unit #: 880499 1 DocuSign Envelope ID: 32766AF6-6EFB-4ABA-BFA4-8AA444AD1FB0 WHEREAS, Lessor and Lessee desire to amend the Agreement on the terms and conditions contained herein. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, Lessor and Lessee agree as follows: 1. Recitals; Defined Terms. The parties acknowledge the accuracy of the foregoing recitals. Any capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement. All references of the defined terms "SSLP" and "Sprint" in the Agreement are hereby deleted and "Lessee" is inserted in its place. 2. Term. The second sentence of Section 2 of the Original Agreement, and only that sentence, is hereby deleted and the following is inserted in its place: This Agreement will be automatically renewed for seven (7) additional terms (each a "Renewal Term") of five (5) years each, unless Lessee provides Lessor notice of intention not to renew not less than ninety (90) days prior to the expiration of any Renewal Term. Lessor and Lessee hereby acknowledge that Lessee has exercised the first three (3) Renewal Terms, leaving a balance of four (4) Renewal Terms, with the final Renewal Term expiring on November 5, 2041. 3. Conditional Sivninv Bonus. Lessee will pay to Lessor a one-time amount of Ten Thousand and 00/100 Dollars ($10,000.00) for the full execution of this Third Amendment (and any applicable memorandum of amendment) (the "Conditional Signing Bonus"). Lessee will pay to Lessor the Conditional Signing Bonus within sixty (60) days of the full execution of this Third Amendment (and any applicable memorandum). In the event that this Third Amendment (and any applicable memorandum) is not fully executed by both Lessor and Lessee for any reason, Lessee shall have no obligation to pay the Conditional Signing Bonus to Lessor. 4. One-time Rent Increase. On November 6, 2021, the monthly rent shall increase to Two Thousand Six Hundred Fifty -Three and 00/100 Dollars ($2,653.00) per month, which increase shall replace and be in lieu of the regular rent escalation scheduled to occur pursuant to the Agreement on July 1, 2021. Following such increase, the monthly rent shall continue to adjust pursuant to the terms of the Agreement. 5. Lessor's Cooneration. If requested by Lessee, Lessor will execute, at Lessee's sole cost and expense, all documents required by any governmental authority in connection with any Site Name: NORTHWEST DUBLIN Business Unit #: 880499 2 DocuSign Envelope ID: 32766AF6-6EFB-4ABA-BFA4-8AA444AD1FB0 development of, or construction on, the Site, including documents necessary to petition the appropriate public bodies for certificates, permits, licenses and other approvals deemed necessary by Lessee in Lessee's absolute discretion to utilize the Site for the purpose of constructing, maintaining and operating communications facilities, including without limitation, tower structures, antenna support structures, cabinets, meter boards, buildings, antennas, cables, equipment and uses incidental thereto. Lessor agrees to be named applicant if requested by Lessee. Lessor shall be entitled to no further consideration with respect to any of the foregoing matters. 6. Eminent Domain. If Lessor receives notice of a proposed taking by eminent domain of any part of the Lessor's Property upon which the Site or any easements are situated, Lessor will notify Lessee of the proposed taking within five (5) days of receiving said notice and Lessee will have the option to: (i) declare the Agreement null and void and thereafter neither party will have any liability or obligation thereunder; or (ii) remain in possession of that portion of the Site and easements that will not be taken, in which event there shall be an equitable adjustment in rent on account of the portion of the Site and easements so taken. With either option Lessee shall have the right to contest the taking and directly pursue an award. 7. Ratification. a) Lessor and Lessee agree that Lessee is the current lessee under the Agreement, the Agreement is in full force and effect, as amended herein, and the Agreement contains the entire agreement between Lessor and Lessee with respect to the Site. b) Lessor agrees that any and all actions or inactions that have occurred or should have occurred prior to the date of this Third Amendment are approved and ratified and that no breaches or defaults exist as of the date of this Third Amendment. c) Lessor represents and warrants that Lessor is duly authorized and has the full power, right and authority to enter into this Third Amendment and to perform all of its obligations under the Agreement as amended. d) Lessor agrees to provide such further assurances as may be requested to carry out and evidence the full intent of the parties under the Agreement as amended hereby, and ensure Lessee's continuous and uninterrupted use, possession and quiet enjoyment of the Site under the Agreement as amended hereby. e) Lessor acknowledges that the Site, as defined, shall include any portion of the Lessor's Property on which communications facilities or other Lessee improvements exist on the date of this Third Amendment. Site Name: NORTHWEST DUBLIN Business Unit #: 880499 3 DocuSign Envelope ID: 32766AF6-6EFB-4ABA-BFA4-8AA444AD1FB0 8. IRS Form W-9. Lessor agrees to provide Lessee with a completed IRS Form W-9, or its equivalent, upon execution of this Third Amendment and at such other times as may be reasonably requested by Lessee. In the event the Lessor's Property is transferred, the succeeding lessor shall have a duty at the time of such transfer to provide Lessee with a completed IRS Form W-9, or its equivalent, and other related paper work to effect a transfer in the rent to the new lessor. Lessor's failure to provide the IRS Form W-9 within thirty (30) days after Lessee's request shall be considered a default and Lessee may take any reasonable action necessary to comply with IRS regulations including, but not limited to, withholding applicable taxes from rent payments. 9. Remainder of Agreement Unaffected. The parties hereto acknowledge that except as expressly modified hereby, the Agreement remains unmodified and in full force and effect. In the event of any conflict or inconsistency between the terms of this Third Amendment and the Agreement, the terms of this Third Amendment shall control. The terms, covenants and provisions of this Third Amendment shall extend to and be binding upon the respective executors, administrators, heirs, successors and assigns of Lessor and Lessee. This Third Amendment may be executed simultaneously or in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. 10. Survey. Lessee reserves the right, at its discretion and at its sole cost, to obtain a survey ("Survey") specifically describing the Site and any access and utility easements associated therewith. Lessee shall be permitted to attach the Survey as an exhibit to this Third Amendment and any related memorandum for recording, which shall update and replace the existing description, at any time prior to or after closing of this Third Amendment. 11. Recordation. Lessee, at its cost and expense, shall have the right to record a memorandum of this Third Amendment ("Memorandum") in the official records of Alameda County, California at any time following the execution of this Third Amendment by all parties hereto. In addition, Lessee shall have the right in its discretion, to record a notice of agreement, affidavit or other form to be determined by Lessee without Lessor's signature in form and content substantially similar to the Memorandum, to provide record notice of the terms of this Third Amendment. [Execution Pages Follow] Site Name: NORTHWEST DUBLIN Business Unit #: 880499 4 DocuSign Envelope ID: 32766AF6-6EFB-4ABA-BFA4-8AA444AD1FB0 This Third Amendment is executed by Lessor as of the date first written above. LESSOR: CITY OF DUBLIN, a municipal corporation By: Print Name: Print Title: [Lessee Execution Page Follows] Site Name: NORTHWEST DUBLIN Business Unit #: 880499 5 DocuSign Envelope ID: 32766AF6-6EFB-4ABA-BFA4-8AA444AD1FB0 This Third Amendment is executed by Lessee as of the date first written above. LESSEE: STC FIVE LLC, a Delaware limited liability company, registered in California as TOWER COMPANY FIVE LLC By: GLOBAL SIGNAL ACQUISITIONS III LLC, a Delaware limited liability company Its: Attorney in Fact DocuSigned by: B :nit_�1 Pr N $c 4* a wen!) Print Title: Senior Transaction Manager Site Name: NORTHWEST DUBLIN Business Unit #: 880499 6