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Home My WebLink About2007-153 Council ResolutionCouncil Member Reinert introduced the following resolution and moved its adoption: CITY OF LINO LAKES, MINNESOTA RESOLUTION NO. 07 -153 APPROVING AMENDMENT TO SITE LEASE AGREEMENT, WATER TOWER #1 — NEXTEL COMMUNICATIONS WHEREAS, Sprint and Nextel Communications have recently merged; and WHEREAS, All existing lease agreements are being reevaluated; and WHEREAS, The City of Lino Lakes has lease agreements with both Sprint and Nextel Communications at each of the water towers; and WHEREAS, AMENDMENT NO. 2 adjusts the annual rent of the current Nextel Lease Agreement (at Water Tower #1) to $19,546.79 per year. In addition, rent will be increased 15% at the beginning of every renewal term; and WHEREAS, AMENDMENT NO. 2 also provides for renewal of up to 5 additional terms after the Current Lease Agreement expires (December 31, 2011). NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lino Lakes, Minnesota, that the Mayor and Clerk are hereby authorized to execute, on behalf of the City, AMENDMENT NO. 2 with Nextel Communications. Passed by the Lino Lakes City Council this 24th day of September, 2007. ATTEST: ne Bartell, Cit CI T.- motion for .doption of the foregoing resolution was duly seconded by Council Member Stoltz and upon a vote being taken thereon, the following voted in favor thereof: Reinert, Stoltz,: Carlson, O'Donnell, Bergeson The following voted against same: none Whereupon said resolution was declared duly passed and adopted. JohKJ. Be ~: eso , Mayor &TAFF ORIGINATOR: DATE: TOPIC: AGENDA ITEM NO. 1K Rick DeGardner, Public Services Director September 24, 2007 Consideration of Resolution 07 -153, Amendment to Site Lease Agreement, Water Tower #1 — Nextel Communications VOTE REQUIRED: Simple Majority BACKGROUND: As you may be aware Sprint and Nextel have recently merged. Consequently, all existing lease agreements are being reevaluated. The city of Lino Lakes has lease agreements with both Sprint and Nextel at each of the water towers. AMENDMENT NO. 2 adjusts the annual rent of the current Nextel Lease Agreement (at Water Tower #1) to $19,546.79 per year (In June, 2000, Nextel rent was increased $200 per month due to additional floor space being used for equipment). This is the same rent amount as the other three wireless service providers. Rent will be increased 15% at the beginning of every renewal term (each term is 5 years in length). , MENDMENT NO. 2 also provides for renewal of up to 5 additional terms after the Current Lease greement expires (December 31, 2011). OPTIONS: 1. Approve Resolution No. 07 -153. 2. Deny Resolution No. 07 -153. 3. Return to staff for further review. RECOMMENDATION: Option 1. • 9/19/2007 J: \Ricks Folder \Utilities\Antenna \Greensheet Nextel amendment 9 -07 .doc • • Sprint Site ID: MN0038/68057 AMENDMENT NO. 2 THIS AMENDMENT NO.2 ( "Amendment ") is made effective as of the day of 20 ( "Effective Date "), by and between City of Lino Lakes, having a mailing address at 600 Town Center Parkway, Lino Lakes, MN 55014, ATTN: Public Services Director ( "Landlord ") and Nextel West Corporation, a Delaware corporation, d /b /a Nextel Communications, successor in interest to One Comm Corp. N.A., d.b.a. Nextel Communications, a Corporation organized and existing under the laws of Delaware ( "Tenant "). BACKGROUND Pursuant to a Site Lease Agreement dated January 13, 1997 and Amendment No. 1 dated June 20, 2000 (collectively, the "Agreement "), Landlord leased to Tenant a certain portion of Property located at 7470 4th Avenue, City of Lino Lakes, County of Anoka, State of MN, as more particularly described in Exhibit B to the Agreement ( "Leased Premises "). Landlord and Tenant desire to further amend the Agreement as set forth herein. Words and phrases having a defined meaning in the Agreement have the same respective meanings when used herein unless otherwise expressly stated. AGREEMENT The parties agree as follows: 1. Term. Section 4 of the Agreement is amended by adding the following: Notwithstanding anything set forth in Section 4 to the contrary, the current Term of this Agreement will expire on December 31, 2011. Commencing on January 1, 2012, the term of this Agreement ( "New Initial Term ") is 5 years. The Agreement will be automatically renewed for up to 5 additional terms (each a "Renewal Term ") of 5 years each. Each Renewal Term will be deemed automatically exercised without any action by either party unless Tenant gives written notice of its decision not to exercise any option(s) to Landlord before expiration of the then current term. 2. Rent. Section 2a of the Agreement is amended by adding the following: Notwithstanding anything set forth in Section 2a to the contrary, effective January 1, 2008, Rent shall be paid in equal annual installments of Nineteen Thousand Five Hundred Forty Six and 79/100 Dollars ($19,546.79) per year, partial years to be prorated, in advance, and shall continue during the term (until increased as set forth herein). Thereafter, commencing on January 1, 2013, Rent will be increased by Fifteen percent (15 %) and every 5 years thereafter by Fifteen (15 %) of the then current Rent. Tenant initials: 1 Master Template V.8; BDW Deal V.2 Landlord initials: Sprint Site ID: MN0038/68057 • 3. Modification of Tenant's Obligation to Pay - Rent Guarantee Period. • Notwithstanding Tenant's obligations to pay Rent set forth under this Agreement, for a 36 -month period commencing on January 1, 2008 and ending December 31, 2010 ( "Rent Guarantee Period "), Tenant shall be obligated to pay Rent due under the Agreement and such obligation will not be subject to early termination by Tenant, unless such termination is due to (i) Landlord's lack of proper ownership of the Leased Premises; (ii) Landlord's lack of authority to enter into this Agreement; (iii) Landlord's breach of any of the terms and conditions of this Agreement; or (iv) the Leased Premises being rendered inoperable due to an event beyond the reasonable control of either Tenant or Landlord, including, but not limited to eminent domain, condemnation, acts of God or criminal acts, in which event Tenant will have the authority to exercise its termination rights during the Rent Guarantee Period and the Rent Guarantee Period will no longer apply and no guaranteed Rent will be owed. Tenant may terminate this Agreement prior to the expiration of the Rent Guarantee Period even though none of the events set forth in subsections (i) through (iv) above have occurred, however, in such event Tenant shall be required to continue to pay Landlord the Rent Tenant agreed to pay Landlord during the Rent Guarantee Period. 4. Termination. Section 13 of the Agreement is amended by deleting the entire provision and substituting the following provision in its place: "Following the expiration of the Rent Guarantee Period, Tenant may terminate this Agreement at any time and for any or no reason by prior written notice to Landlord without further liability. Landlord shall be entitled to retain Rent due under this Agreement until the effective date set forth in the termination notice (calculated on a pro rata basis) unless such termination is due to (i) Landlord's lack of proper ownership of the Leased Premises; (ii) Landlord's lack of authority to enter into this Agreement; (iii) Landlord's breach of any of the terms and conditions of this Agreement; or (iv) the Leased Premises being rendered inoperable due to an event beyond the reasonable control of either Tenant or Landlord, including, but not limited to eminent domain, condemnation, acts of God or criminal acts, in which event no Rent will be due." 5. Notices. Section 21 of the Agreement is amended by deleting the entire provision and substituting the following provision in its place: "All notices, requests, demands or other communications with respect to this Agreement, whether or not herein expressly provided for, must be in writing and will be deemed to have been delivered either five (5) business days after being mailed by United States first -class certified or registered mail, postage prepaid, return receipt requested; or the next business day after being deposited with an overnight courier service for next -day delivery to the parties at the following addresses (the addresses may be changed by either party by giving written notice): Landlord: Tenant: City of Lino Lakes 600 Town Center Parkway Lino Lakes, MN 55014 ATTN: Public Services Director Nextel West Corporation SITE ID: MN0038 Sprint/Nextel Regional Property Services Mailstop KSOPHT0101 -Z2650 Tenant initials: 2 Landlord initials: Master Template V.8; BDW Deal V.2 • 6391 Sprint Parkway Overland Park, KS 66251 -2650 • • with a copy to: Sprint Nextel Law Department Attn: Real Estate Attorney Mailstop KSOPHT0101 -Z2020 6391 Sprint Parkway Overland Park, KS 66251- 2020" Sprint Site ID: MN0038/68057 6. Additional Terms and Conditions to this Amendment. This Amendment incorporates all the provisions set forth in Schedule I, attached hereto. 7. Reaffirmation; Intention to be Bound. Except as provided in this Amendment, each and every term, condition and agreement contained in the Agreement will remain in full force and effect. The parties reaffirm that the representations and warranties made by each of the parties in the Agreement are true and accurate as of the Effective Date. The parties executing this Amendment, on behalf of themselves, their assigns and successors, acknowledge and reaffirm their intention to be bound by the terms and conditions of the Agreement. The parties have caused this Amendment to be executed as of the Effective Date. LANDLORD: TENANT: City of Lino Lakes Nextel West Corporation, a Delaware corporation By: By: Printed Name: Printed Name: Title: Title: Tenant initials: 3 Landlord initials: Master Template V.8; BDW Deal V.2 • • • Sprint Site ID: MN0038/68057 SCHEDULE I TO AMENDMENT NO. 2 Additional Lease Terms and Conditions The Agreement is amended to include the following terms and conditions: 1. Expansion of Permitted Use on Existing Lease Space: Landlord hereby grants Tenant the right to modify, supplement, upgrade, replace, remove, refurbish, relocate or expand the equipment related to the Antenna Facilities at no additional cost, including without limitation the antenna tower or pole and foundation, utility lines, transmission lines, an air conditioned equipment shelter(s), electronic equipment, antennas, coax, microwave dishes, a power generator and generator pad, and supporting equipment, within the Leased Premises, at any time during the term of this Agreement, and Landlord shall cooperate with Tenant in all respects in connection with the foregoing. Tenant may operate each Antenna Facilities at any frequency for which it has all requisite Permits. 2. Expansion of Lease Space at Leased Premises: Landlord grants Tenant the right, to the extent practicable and on a space available basis, to enlarge the Leased Premises or to make space available on the Property for Tenant so that Tenant may implement any necessary modifications, supplements, replacements, refurbishments or expansions to the Antenna Facilities or to any equipment related thereto, or for any other reasons, as determined by Tenant in its sole discretion. In the event Tenant requires an additional portion of the Property (the "Additional Leased Premises ") for such modification or upgrade, Landlord agrees to lease to Tenant the Additional Leased Premises at a pre- established monthly rate of $1.50 per square foot. Landlord agrees to take such actions and enter into and deliver to Tenant such documents as Tenant reasonably requests in order to effect and memorialize the lease of the Additional Leased Premises to Tenant. Tenant initials: 4 Landlord initials: Master Template V.8; BDW Deal V.2 • • • RECORDING REQUESTED BY: WHEN RECORDED MAIL TO: Nextel West Corporation SITE ID: MN0038 Sprint/Nextel Regional Property Services Mailstop KSOPHT0101 -Z2650 6391 Sprint Parkway Overland Park, KS 66251 -2650 Sprint Site ID: MN0038/68057 [space above this line for Recorder's use] ATTACHMENT 1 TO AMENDMENT NO. 2 MEMORANDUM OF AMENDMENT TO SITE LEASE AGREEMENT THIS MEMORANDUM OF AMENDMENT TO SITE LEASE AGREEMENT ( "Amended Memorandum "), by and between City of Lino Lakes ( "Landlord ") and Nextel West Corporation, a Delaware corporation, d/b /a Nextel Communications, successor in interest to One Comm Corp. N.A., d.b.a. Nextel Communications, a Corporation organized and existing under the laws of Delaware ( "Tenant "), evidences that the lease made and entered into by written Site Lease Agreement between Landlord and Tenant, dated January 13, 1997, and Amendment No. 1 dated June 20, 2000 ( "Agreement "), has been further amended by written agreement between the parties (the "Amendment "). The parties caused to be recorded a Memorandum of Site Lease Agreement with the Office of County Recorder, County of Anoka, State of MN, as document number on and a Memorandum of Amendment No.1 with the Office of County Recorder, County of Anoka, State of MN, as document number on The Amendment provides in part that Landlord leases to Tenant certain Property owned by Landlord and located at a location commonly known as 7470 4th Avenue, City of Lino Lakes, County of Anoka, State of MN, together with non - exclusive utility and access easements (the "Leased Premises "). The Property which is the subject of the Agreement is described in Exhibit A attached hereto. The Amendment grants Tenant the option to extend the Agreement for Five (5) additional 5 -year terms after the expiration of the initial 5 -year term which commenced on January 1, 2012. SIGNATURES ON FOLLOWING PAGE Tenant initials: 5 Landlord initials: Master Template V.8; BDW Deal V.2 Sprint Site ID: MN0038/68057 • IN WITNESS WHEREOF, the parties have executed this Amended Memorandum as of the day and year indicated below. • • LANDLORD: TENANT: City of Lino Lakes Nextel West Corporation, a Delaware corporation By: By: Printed Name: Printed Name: Title: Title: Tenant initials: 6 Landlord initials: Master Template V.8; BDW Deal V.2