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HomeMy WebLinkAbout091 - 09/06/2022 - AUTHORIZING THE EXECUTION OF A FIRST AMENDMENT TO LEASE WITH NEW CINGULAR WIRELESS PCS, LLC OF CITY-ORDINANCE NO.091, 2022 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE EXECUTION OF A FIRST AMENDMENT TO LEASE WITH NEW CINGULAR WIRELESS PCS, LLC OF CITY -OWNED PROPERTY AT CITY PARK BALLFIELDS WHEREAS, the City is the owner of that certain parcel of real property known as the City Park Ballfields (the "Ballfields") located at 1715 W. Mountain Avenue, Fort Collins, CO 80521; and WHEREAS, on September 20, 2005, the City Council adopted Ordinance No. 098, 2005, authorizing the City to enter into a Colorado Option and Structure Lease Agreement with New Cingular Wireless PCS, LLC ("New Cingular") regarding the leased premises located at the Ballfields for the use of a pole for the installation of its personal communications service antenna and related equipment (the "Lease Space"); and WHEREAS, the City and New Cingular entered into the Colorado Option and Structure Lease Agreement dated October 3, 2005 (the "Lease") for a six-month option period within which Cingular could choose to move forward with the Lease, then an initial lease term of five years plus two five-year options to renew, and a final renewal period to expire no later than March 8, 2023; and WHEREAS, New Cingular has requested that the City extend the current Lease term to end on October 20, 2023, instead of March 8, 2023, and grant an extension of the Lease for one additional five-year term starting on October 21, 2023; and WHEREAS, staff has negotiated with New Cingular proposed terms for an extension and has prepared a First Amendment to Site Lease ("First Amendment") to extend the Lease, together with all necessary easements for access and utilities set forth in the Lease, by five years; and WHEREAS, a copy of the proposed First Amendment is attached hereto as Exhibit "A" and incorporated herein by reference; and WHEREAS, the First Amendment provides that New Cingular shall pay lease payments at a rate of $24,000 per year for the initial year, said rate to be increased annually by three percent; and WHEREAS, the financial benefits to the City of permitting New Cingular's continued use are substantial, and the impacts to the City of the same are minimal; and WHEREAS, under Section 23-113 of the City Code, the Council is authorized to lease any and all interests in real property owned in the name of the City, provided that Council first finds that the lease is in the best interests of the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That the City Council hereby determines that the extension of the term of the Lease along with all necessary easements for access and utilities as set forth in the Lease for the period from March 8, 2023, to October 20, 2023, followed by one additional term of five years, is in the best interests of the City. Section 3. That the City Council hereby authorizes the City Manager to enter into the First Amendment to Colorado Option and Structure Lease Agreement with New Cingular Wireless PCS, LLC, for the continued use of the Lease Space, consistent with the terms hereof, along with such other provisions as the City Manager, in consultation with the City Attorney, deems necessary or appropriate to protect the interests of the City. Introduced, considered favorably on first reading and ordered publishgd,,this 16th day of August, A.D. 2022, and to be presented for final passage on 6th day of Scy er ber, A.D. 2022. ATTEST: U; SEAL . 1p City Clerk Passed and adopted on final reading this 6th rDC'T .t ATTES SE A L +� City Clerk EXHIBIT A DocuSign Envelope ID: 2EEA8706-2C51-4456-9709-24BA753D1E4C FIRST AMENDMENT TO COLORADO OPTION AND STRUCTURE LEASE AGREEMENT This First Amendment to Colorado Option and Structure Lease Agreement (the "First Amendment") is effective as of (the "Effective Date") by and between the City of Fort Collins, Colorado, a Colorado municipal corporation ("Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company ("Tenant") (each a "Party", or collectively, the "Parties"). A. Landlord and Tenant (or their predecessors -in -interest) entered into that certain Colorado Option and Structure Lease Agreement dated October 3, 2005 and effective October 12, 2005 (the "Lease") regarding the leased premises ("Premises") located at 1715 W. Mountain Avenue, Fort Collins, CO 80521 (the "Property"). For good and valuable consideration, Landlord and Tenant agree as follows: 1. The term of the Agreement shall be amended to provide that the current term, which commenced on March 08, 2018, shall expire on October 20, 2023 ("Current Term"), and commencing on October 21, 2023, will be automatically renewed, upon the same terms and conditions of the Agreement, for one (1) additional five (5) year term (the "Renewal Term"). Hereafter, "Term" shall include the Current Term and the Renewal Term. Lessor agrees and acknowledges that, except as such permitted use or other rights may be amended herein, Lessee may continue to use and exercise its rights under the Agreement as permitted prior to the Renewal Term. 2. Commencing October 21, 2023, Tenant shall pay Landlord annual rent in the amount of Twenty -Four Thousand and No/100 dollars ($24,000.00) per year (the "Rent"). Where duplicate Rent would occur, a credit shall be taken by Tenant for any prepayment of Rent by Tenant. Rent shall be adjusted annually on each anniversary of the Renewal Term commencement date by an amount equal to three percent (3%) over the Rent for the immediately preceding year. This new Rent and Rent adjustment shall supersede and replace any prior rent and rent adjustments. If Tenant remains in possession of the Premises at the expiration or termination of this Lease without a new written agreement, such tenancy shall be deemed a month -to - month tenancy. Rent for the holdover period shall be 150% of the last current annual rent, plus the three percent annual (3%) escalator as applicable, prorated and paid monthly on the first day of each month. 3. All notices, requests, and demands shall be in writing and shall be deemed to have been delivered upon receipt or refusal to accept delivery, and are effective only when deposited into the U.S. certified mail, return receipt requested, or when sent via a nationally recognized courier to the addresses set forth below. Landlord or Tenant may 1 TMO Site ID: DN03245A 6/29/20 Tenant Cell Site Name: Sheldon Lake TMO Lease ID: 79407 Tenant Cell Site #: COL030360 EXHIBIT A DocuSign Envelope ID: 2EEA8706-2C51-4456-9709-24BA753D1E4C from time to time designate any other address for this purpose by providing written notice to the other Party. If to Tenant: New Cingular Wireless PCS, LLC Attn: TAG — LA Re: Cell Site #: COL030360 Cell Site Name: Sheldon Lake (TX) Fixed Asset #: 10099199 1025 Lenox Park Blvd. NE 3rd Floor Atlanta, GA 30319 If to Landlord: City of Fort Collins, Colorado 300 Laporte Avenue, Building B Fort Collins, CO 80521 Attn: Real Estate Service Manager With a copy to: New Cingular Wireless PCS, LLC Attn: Legal Department New Cingular Wireless PCS, LLC Re: Cell Site #: COL030360 Cell Site Name: Sheldon Lake (TX) Fixed Asset #: 10099199 208 S. Akard Street Dallas, TX, 75202-4206 4. Tenant will ensure that Landlord has current contact information for Tenant's employees, representatives and/or contractors that are in charge of access, maintenance, and repairs on the Premises. 5. Tenant and Landlord will reasonably cooperate with each other's requests to approve permit applications and other documents related to the Property without additional payment or consideration. 6. Except as expressly set forth in this First Amendment, the Lease otherwise is unmodified. To the extent any provision contained in this First Amendment conflicts with the terms of the Lease, the terms and provisions of this First Amendment shall control. Each reference in the Lease to itself shall be deemed also to refer to this First Amendment. 7. This First Amendment may be executed in duplicate counterparts, each of which will be deemed an original. Signed electronic, scanned, or facsimile copies of this First Amendment will legally bind the Parties to the same extent as originals. 8. Each of the Parties represents and warrants that it has the right, power, legal capacity and authorityto enter into and perform its respective obligations underthis First Amendment. Landlord represents and warrants to Tenant that the consent or approval of a third party has either been obtained or is not required with respect to the execution of this First Amendment. 9. This First Amendment will be binding on and inure to the benefit of the Parties herein, their heirs, executors, administrators, successors -in -interest and assigns. 2 TMO Site ID: DN0324SA 6/29/20 Tenant Cell Site Name: Sheldon Lake TMO Lease ID: 79407 Tenant Cell Site #: COL030360 EXHIBIT A DocuSign Envelope ID: 2EEA8706-2C51-4456-9709-24BA753D1E4C IN WITNESS, the Parties execute this First Amendment as of the Effective Date. LANDLORD: City of Fort Collins, Colorado, a Colorado municipal corporation By: Print Name: Kelly DiMartino Title: City Manager Date: ATTEST: By: Print Name: Anissa Hollingshead Title: City Clerk APPROVED AS TO FORM: By: Print Name: Ingrid Decker Title: Senior Assistant City Attorney TENANT: New Cingular Wireless PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: Print Name: Title: Date: DocuSigned by: �FOCDE175DEBF439... Mark Johns Area Manager 7/8/2022 3 TMO Site ID: DN03245A 6/29/20 Tenant Cell Site Name: Sheldon Lake TMO Lease ID: 79407 Tenant Cell Site #: COL030360