Agenda Item No. 6c July 14, Rod Moresco, Director of Public Works/City Engineer

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1 Agenda Item No. 6c July 14, 2009 TO: FROM: SUBJECT: Honorable Mayor and City Council Attention: Laura C. Kuhn, City Manager Rod Moresco, Director of Public Works/City Engineer VACAVILLE PUBLIC FINANCING AUTHORITY APPROVAL OF THE THIRD AMENDMENT TO THE COMMUNICATIONS SITE SUBLEASE AGREEMENT BETWEEN THE CITY OF VACAVILLE AND T-MOBILE WEST CORPORATION, A DELAWARE CORPORATION, FOR THE WIRELESS CELL SITE AT THE CITY S CORPORATION YARD DISCUSSION: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VACAVILLE APPROVING THE THIRD AMENDMENT TO THE COMMUNICATIONS SITE SUBLEASE AGREEMENT BETWEEN THE CITY OF VACAVILLE AND T-MOBILE WEST CORPORATION, A DELAWARE CORPORATION, FOR THE WIRELESS CELL SITE AT THE CITY S CORPORATION YARD T-Mobile West Corporation has expressed a desire to enter into a third sublease amendment for their wireless cell site located at the City s Corporation Yard, which is owned by the Vacaville Public Financing Authority and leased to the City. This third sublease amendment will provide for the addition of three antennas to be installed on an existing pole that currently holds three antennas. After installation of the three new antennas, all six antennas will be hidden in a painted enclosure known as a radome to provide a more stealth appearance. The installation of the radome was approved by the City Council on February 12, 2008, but has not yet been installed. The annual sublease rent shall increase to $27,838.14, payable annually commencing January 27, Upon modification of the site, a prorated lump sum amount shall be payable to the City based on the difference between the three and six antenna FY 09/10 rate. Sublease rental payments shall be made in advance, annually, commencing on January 27 of each subsequent year, subject to a 4% annual Cost of Living Adjustment throughout the term of the sublease. In addition, should modifications to the current number of antenna on the pole be desired, the annual sublease rent shall b amended in accordance with the most current Cell Site Lease Rate schedule approved by the Director of Public Works. The Community Development Department has approved the site modification as File # FISCAL IMPACT: The City of Vacaville will receive discretionary funds in the amount of $27, per year with Cost of Living Adjustments in subsequent years for the length of the contract. RECOMMENDATION: 1. Vacaville Public Financing Authority: By simple motion, that the Vacaville Public Financing Authority approve the third amendment to the Communications Site Sublease Agreement between the City of Vacaville and T-Mobile West Corporation, a Delaware Corporation, for the wireless cell site at the City s Corporation Yard. 2. City Council: By simple motion, that the City Council of the City of Vacaville adopt a resolution approving the third amendment to the Communications Site Sublease Agreement between the City of Vacaville and T-Mobile West Corporation, a Delaware Corporation, for the wireless cell site at the City s Corporation Yard.

2 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VACAVILLE APPROVING THE THIRD AMENDMENT TO THE COMMUNICATIONS SITE SUBLEASE AGREEMENT BETWEEN THE CITY OF VACAVILLE AND T-MOBILE WEST CORPORATION, A DELAWARE CORPORATION, FOR THE WIRELESS CELL SITE AT THE CITY S CORPORATION YARD WHEREAS, the City of Vacaville entered into a Sublease Agreement with T-Mobile West Corporation s predecessor in interest on December 11, 1996, (Lessee) for a cellular lease at Site # BA00375, located at the City s Corporation Yard; and WHEREAS, on February 12, 2008, the City and Lessee executed a second sublease amendment which provided for a five (5) year extension to the current cell site sublease and holdover agreement, and allowed for up to three (3) additional five (5) year terms; and WHEREAS, the second sublease amendment required the existing cell pole be repainted and modified requiring the existing antennas be enclosed within a stealth design radome; and WHEREAS, T-Mobile West Corporation desires to modify the site to support a total of six (6) antennas in a radome on the existing pole therefore requiring an increase to the existing annual lease payment. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Vacaville does hereby authorize the City Manager to execute a third amendment to the T-Mobile West Corporation wireless cell site sublease at the City s Corporation Yard for the modification of the site to allow for six (6) antennas to be added to the existing cell pole. I HEREBY CERTIFY that the foregoing resolution was introduced and passed at a regular meeting of the City Council of the City of Vacaville held on the 14 th day of July 2009, by the following vote: AYES: NOES: ABSENT: ATTEST: Michelle A. Thornbrugh, City Clerk

3 BA00375A Marshall & Isabella THIRD AMENDMENT TO COMMUNICATIONS SITE SUBLEASE AGREEMENT THIS THIRD AMENDMENT TO COMMUNICATIONS SITE SUBLEASE AGREEMENT ( Third Amendment ), dated as of, 2009, by and between the CITY OF VACAVILLE, a municipal corporation ( Lessor ), and T-Mobile West Corporation, a Delaware corporation, as successor-in-interest to TMO CA/NV, LLC, a Nevada limited liability company ( Lessee ). RECITALS A. Lessor and Lessee s predecessor in interest, Pacific Bell Mobile Services (PBMS) entered into a Communications Site Sublease Agreement dated December 11, 1996 as amended by the First Amendment to Communications Site Sublease Agreement, dated December 26, 2001, as extended by that certain Holdover Agreement entered into by the Parties extending the Sublease to January 26, 2008 and as amended by that certain Second Amendment to Communications Site Sublease Agreement dated February 12, 2008 (together the Sublease ) which permitted Lessee to establish a wireless communications facility on a portion of Lessor s property located at 1001 Allison Drive, Vacaville, California, ( Premises ). B. Lessor and Lessee desire to amend the Sublease to provide for an increase in the rent and to allow Lessee to modify its Facilities. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: SECTION 1. PARAGRAPH 5 AMENDED. Paragraph 5 of the Sublease is hereby amended to read in full as follows: "5. Rent: Commencing January 27, 2008, Lessee shall pay Lessor as rent, the sum of Twenty Thousand Two Hundred Forty-Eight Dollars ($20,248.00) per year ( Rent ). Commencing July 27, 2009, Lessee shall pay Lessor as rent for the additional facilities installed for the period from July 27, 2009 through January 26, 2010, the lump sum of Three Thousand Seven Hundred Ninety-Five Dollars ($3,795.00). The lump sum is due and payable on or before August 15, Commencing January 27, 2010 Lessee shall pay Lessor as Rent the sum of Twenty-Seven Thousand Eight Hundred Thirty-Eight Dollars and Fourteen Cents ($27,838.14) per year ( Rent ). Rent shall be payable on January 27 of each subsequent year, in advance, to Lessor s address specified in Paragraph 17, Miscellaneous. If Rent is not paid within ten (10) days after the due date Lessee agrees to pay a late charge equal to four percent (4%) of the then-current annual Rent. Rent shall be increased annually on January 27 of each year thereafter by four percent (4%) of the previous year s Rent, rounded to the nearest dollar. Past due Rent and late charges shall bear interest at the legal rate of interest until paid in full. Notwithstanding anything to the contrary herein, Lessee s failure to pay any past due Rent through August 15, 2009 shall not constitute a default under this Sublease. Lessee shall be permitted to pay any and all past due Rent on or before August 15, 2009 without late charges or penalties." 1

4 BA00375A Marshall & Isabella SECTION 2. LESSEE FACILITIES. Paragraph 6(h) is hereby added and incorporated into the Lease as follows: (h) Lessor agrees that Lessee may modify Lessee s Facilities at any time after the full execution of this Third Amendment in accord with the terms and conditions of the Sublease, as hereby amended, and with the attached plans, which are hereby incorporated into the Sublease as an addition to Exhibit B. Such plans have been approved by Lessor s Public Works and Community Development Departments. SECTION 3. OTHER TERMS AND CONDITIONS OF SUBLEASE. All other terms and conditions of the Sublease not expressly amended by this Third Amendment shall remain in full force and effect. The capitalized words and phrases used in this Third Amendment shall have the same meaning as used in the Sublease, First Amendment, Second Amendment or Holdover Agreement, unless the context clearly provides otherwise. In case of any inconsistencies between the terms and conditions contained in the Sublease and the terms and conditions contained herein, the terms and conditions herein shall control. IN WITNESS WHEREOF, the parties have executed this Third Amendment as of the date and year first above written. LESSOR CITY OF VACAVILLE, a municipal corporation By: Name: Laura C. Kuhn Title: City Manager APPROVED AS TO FORM: By: Name: Melinda C. H. Stewart Title: Assistant City Attorney 2

5 BA00375A Marshall & Isabella "LESSEE" T-Mobile West Corporation, a Delaware corporation By: Name: Title: 3

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