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HomeMy WebLinkAbout04 FIRST AMENDMENT TO COMMUNICATIONS AGMT WITH NEW CINGULAR WIRELESS AT TUSTIN SPORTS PARK (12850 ROBINSON DR)AGENDA REPORT MEETING DATE: FEBRUARY 19, 2019 Agenda Item Reviewed. City Manager Finance Director TO: MATTHEW S. WEST, ACTING CITY MANAGER FROM: DAVID A. WILSON, DIRECTOR, PARKS AND RECREATION SUBJECT: FIRST AMENDMENT TO COMMUNICATIONS SITE LICENSE AGREEMENT WITH NEW CINGULAR WIRELESS PCS, LLC (AT&T) FOR EXISTING WIRELESS FACILITIES AT TUSTIN SPORTS PARK (12850 ROBINSON DRIVE) SUMMARY First Amendment to Communications Site License Agreement between the City of Tustin and New Cingular Wireless PCS, LLC (AT&T). The Amendment would allow New Cingular Wireless PCS, LLC to make additional improvements to an existing communications site as described in Exhibit 3-A of the attachment. RECOMMENDATION It is recommended that the City Council take the following actions: 1. Approve the attached First Amendment to Communications Site License Agreement with New Cingular Wireless PCS, LLC; and 2. Authorize the Acting City Manager to execute this First Amendment. FISCAL IMPACT The City entered into a Communications Site License Agreement (License Agreement) with New Cingular Wireless PCS, LLC (Licensee) on February 18, 2014, for one carrier to occupy the Licensee's facilities, with a term of 10 years with two 5 -year options. License payments are escalated annually at 4%. The Licensee is currently finishing the 5th year of the agreement and paying $43,800 per year ($3,650 per month) for the right to retain existing facilities and antennas at Tustin Sports Park. The First Amendment to the Communications Site License Agreement will require the Licensee to pay an additional $6,000 per year ($500 per month) for the additional improvements to the site outlined in Exhibit 3-A of the attachment. The term of the First Amendment is coterminous with the current License Agreement of 10 years with two 5 -year options, with license payments escalated annually at 4.00%. Over the remaining 5 years in the initial 10 -year term, the Licensee's gross license payments will total $269,730. If the Licensee exercises the option to extend through 2033 (total of 15 years), gross license payments will total $997,163. The City will receive 80% of the gross payments ($797,730) and the other 20% will go to ATS Communications as the City's consultant for this License Agreement, including any amendments and extension periods. CORRELATION TO THE STRATEGIC PLAN This action advances Goal C of the City of Tustin Strategic Plan regarding Financial Strength by providing opportunities for new/increased revenues. BACKGROUND Wireless facilities have been located in Tustin Sports Park since 1996. The equipment facilities are located behind the scoreboard adjacent to Jamboree Road and the antennas are located on the light standards located adjacent to the ballfields. The licensee has had equipment at this site since 2003 and is presently finishing year five of the current License Agreement term of 10 years with two 5 -year options. In April 2017, the Licensee approached ATS Communications with a proposal on making modifications to their wireless facilities at the Tustin Sports Park. Since that time, ATS Communications has been in negotiations (on behalf of the City) with the Licensee to establish the terms of the First Amendment. In addition to increasing the license fees in exchange for authorization to make improvements to the site, the First Amendment also includes the following provisions: • Should Licensee intend to sublicense space to a third party (collocator), the City will receive 50% of the fees collected by Licensee. • New Cingular Wireless PCS, LLC is able to make future modifications without further increases in license fees. • Upon expiration of the License Agreement, ownership of the light standards transfers to the City. `Respectfully su m David A. Wilson, Director Parks & Recreation Attachment — First Amendment to Communications Site License Agreement Market: Los Angeles Cell Site Number: LAC939 Cell Site Name: Tustin Sports Park Fixed Asset Number: 10101393 FIRST AMENDMENT TO COMMUNICATIONS SITE LICENSE AGREEMENT THIS FIRST AMENDMENT TO COMMUNICATIONS SITE LICENSE AGREEMENT ("Amendment"), dated as of the latter of the signature dates below ("Effective Date"), is by and between City of Tustin, a municipal corporation, having a mailing address of 300 Centennial Way, Tustin, CA 92780 ("City") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a mailing address of 575 Morosgo Drive NE, Atlanta, GA 30324 ("Licensee"). WHEREAS, City and Licensee entered into a Communications Site License Agreement dated February 18, 2014, whereby City licensed to Licensee certain Premises, therein described, that are a portion of the Property located at 12850 Robinson Drive, Tustin, CA 92782, more commonly known as Tustin Sports Park ("Agreement"); and WHEREAS, City and Licensee desire to amend the Agreement to clarify the Grant of License in connection with the licensed Premises; and WHEREAS, Licensee desires to change, modify or relocate the Licensee's Facilities, which City is willing to approve; and WHEREAS, City and Licensee desire to amend the Agreement to clarify scope of Licensee's permitted use of the Premises; and WHEREAS, Licensee agrees to transfer ownership of the Towers to City upon the cessation of Licensee's operations of Licensee's Facilities; and WHEREAS, City and Licensee desire to adjust the License Payment in conjunction with the modifications to the Agreement contained herein; and WHEREAS, City and Licensee desire to amend the Agreement to modify the notice section thereof, and WHEREAS, City and Licensee desire to amend the Agreement to permit Licensee to add, modify and/or replace equipment in order to be in compliance with any current or future federal, state or local mandated application, including but not limited to emergency 911 communication services; and WHEREAS, City and Licensee, in their mutual interest, wish to amend the Agreement as set forth below accordingly. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Licensee agree as follows: 1. Grant of License. The second sentence of Section 1 "Grant of License" of the Agreement is deleted in its entirety and replaced with the following: City hereby licenses to Licensee a certain portion of the Property containing approximately 402 square feet including the air space above such ground space, as described on attached Attachment 2-A (the "Premises") for the purpose of installing and maintaining certain communications equipment consisting of two antenna support structures ("Towers"), antennas, cable runs, radio transmitting and receiving equipment, conduits, wires, batteries, back-up generators, utility lines and facilities, storage facilities including walls, fences and gates, telephone facilities, microwave equipment and associated equipment ("Licensee's Facilities") on the Property together with the non-exclusive right for ingress and egress from and to the nearest public right-of-way, seven (7) days a week, twenty-four (24) hours a day, subject to any restrictions stated herein, on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along a ten foot (10') wide right-of-way extending from the nearest public right-of-way (the "Non -Exclusive Site Access Area') to the Premises as generally depicted in Attachment 3-A. 2. New Attachment 3-A. Licensee shall have the right, to change, modify or relocate the Licensee's Facilities within the Premises only as more completely described on attached Attachment 3-A. City's execution of this Amendment will signify City's approval as licensor of Attachment 3-A. Attachment 3-A hereby replaces Attachment 3 to the Agreement. Notwithstanding the forgoing City approval as licensor, Licensee remains subject to all requirements under all applicable laws, and remains responsible for obtaining requisite Governmental Approvals at no cost to City. 3. Licensee's Use and Maintenance of Premises. Section 7.1 and 7.2 of the Agreement is deleted in its entirety and replaced with the following: 7.1 Use. Subject to the terms and conditions of this Agreement, Licensee may use the Premises for the transmission and reception of any and all communications signals and the installation, construction, maintenance, operation, repair, replacement and upgrade of its communications fixtures and related equipment, cables, accessories and improvements, provided there is no conflict with the primary purpose of the City -owned property or City emergency communication activities including, but not limited to, emergency service responders serving the City (e.g. the City's Police communication system, the Orange County Fire Authority communication system, and other emergency communication systems). Licensee has the right, without the requirement to increase the License Payment or to pay any other form of consideration to City, but upon thirty (30) days' prior written notice to City, to modify, supplement, replace, upgrade, expand the equipment within the Premises, increase the number of antennas or relocate the Licensee's Facilities within the Premises at any time during the term of this Agreement. Notwithstanding the forgoing rights granted to Licensee, Licensee remains subject to requirements under all applicable laws, and remains responsible for obtaining requisite Governmental Approvals at no cost to City. 7.2 Maintenance of Licensee's Facilities and Damage to City Property. Licensee will keep and maintain the Premises in good condition, reasonable wear and tear and damage from the elements excepted. After initial installation of the Licensee's Facilities without the requirement of any increase in the License Payment or the requirement to pay any other form of consideration to City, Licensee shall have the right to modify, supplement, replace, upgrade, expand all or a portion of the Licensee's Facilities, including but not limited to the number and type(s) of antennas, or refurbish the equipment and/or improvements thereon, or relocate the same within the Premises at any time during the term of the Agreement for any reason, or in order to be in compliance with any current or future federal, state or local mandated application, including but not limited to emergency 911 communication services or for any other reason. Notwithstanding the forgoing, Licensee remains subject to all requirements under all applicable laws, and remains responsible for obtaining requisite Governmental Approvals at no cost to City. Licensee is responsible for notifying the City as described in this Section 7 prior to entering the Premises. Licensee shall indemnify City and shall be solely responsible for the cost of any and all damage caused by Licensee to City -owned property including but not limited to, turf, concrete and/or asphalt, buildings and/or appurtenances caused by Licensee, or Licensee's agents, representatives, contractors, vendors or invitees, regardless of negligence by Licensee or Licensee's agents, representatives, contractors, vendors or invitees. If Licensee fails to commence repairs and/or replace said damage within thirty (30) days of receipt of notice from City of said damage then City will have the right to repair and/or replace said damage and Licensee shall pay to City an amount equal to the amount of said costs which City has invoiced Licensee within thirty (30) days after presentation by the City. to Licensee of a written invoice and documentation in support thereof. If any payment to be made by Licensee pursuant to this Section 7.2 is not received by City within such thirty (30) day period, a late charge equal to ten (10) percent of such overdue amount shall be paid by Licensee for purposes of defraying the expense incidental to handling such delinquent payment, together with interest from the date such payment was due until paid in full, at the default rate of ten (10) percent per annum. 4. Transfer of Ownership of Towers to City. Upon the expiration of this Agreement and cessation of Licensee's operations of Licensee's Facilities on the Premises, Licensee agrees to transfer ownership of the Towers to City in its then "as -is" "where -is" condition without any representations or warranties. 5. Revenue Share. In the event Licensee intends to sublicense space on the Towers to a third parry Collocator ("Collocator"), subject to Section 20.7, Licensee shall provide written notice to City containing a copy of the sublicense agreement. Any such sublicense agreement shall be under and subject to the Agreement. Any sublicense permitted hereunder shall contain substantially the same indemnification, insurance, warranties, representations, maintenance and removal obligations, and compliance with applicable laws, as the Agreement. Notwithstanding anything to the contrary in the Agreement, any sublicense shall be subject to Governmental Approvals at no cost to City. Upon receipt of any rent or license fees ("Collocator Fees"), Licensee shall remit fifty percent (50%) of the Collocator Fees collected by Licensee from such Collocator to City (the "City's Revenue Share"). The Collocator Fees shall be negotiated by and between Licensee and Collocator, on terms acceptable to Licensee, in Licensee's sole discretion, but in all cases, shall include a monthly payment with annual increases, holdover, no set-off, and no prepayment or lump sum in lieu of Collocator Fees. City's Revenue Share shall not include (i) any payment received by Licensee under the applicable sublicense for reimbursement of operating expenses or construction costs relating to the Licensee's Facilities paid by Licensee, or (ii) any other payment other than regular recurring rent or license fees. In the event Licensee sublets to more than one Collocator, Licensee shall be obligated to pay the City's Revenue Share for each Collocator. Licensee's obligation to pay City's Revenue Share to City shall expire or abate, as applicable, at such time as the Collocator does not pay Collocator Rent to Licensee, and shall resume, as applicable, if and when the Collocator resumes paying such recurring Collocator Rent and the City's Revenue Share shall be prorated for partial periods. 6. License Payment. Commencing on the first day of the month following the date that Licensee and City executes this Amendment, the License Payment shall be increased by Five Hundred and No/100 Dollars ($500.00) per month, subject to further adjustments as provided in the Agreement. 7. Notices. Section 20.9 of the Agreement is hereby deleted in its entirety and replaced with the following: NOTICES. All notices, requests, demands and communications hereunder will be given by first class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the parties as follows. If to City: If to LICENSEE: City of Tustin 300 Centennial Way Tustin, CA, 92780 Attention: City Manager's Office New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration RE: Cell Site # LAC939 Cell Site Name: Tustin Sports Park (CA) Fixed Asset #: 10101393 575 Morosgo Drive, NE Atlanta, GA 30324 With a copy to: Tustin City Attorney's Office c/o Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 With a copy to: New Cingular Wireless PCS, LLC Attn: AT&T Legal Department - Network Operations RE: Cell Site #: LAC939 Cell Site Name: Tustin Sports Park (CA) Fixed Asset # 1010193 208 S. Akard Street Dallas, TX 75202-4206 The copy sent to the Legal Department is an administrative step which alone does not constitute legal notice. Either party hereto may change the place for the giving of notice to it by thirty (30) days prior written notice to the other as provided herein. 8. Emergency 911 Service. In the future, without the payment of additional rent and at a location mutually acceptable to City and Licensee, City agrees that Licensee may add, modify and/or replace equipment in order to be in compliance with any current or future federal, state or local mandated application, including but not limited to emergency 911 communication services. 9. Other Terms and Conditions Remain. In the event of any inconsistencies between the Agreement and this Amendment, the terms of this Amendment shall control. Except as expressly set forth in this Amendment, the Agreement otherwise is unmodified and remains in full force and effect. Each reference in the Agreement to itself shall be deemed also to refer to this Amendment. 10. Capitalized Terms. All capitalized terms used but not defined herein shall have the same meanings as defined in the Agreement. IN WITNESS WHEREOF, the parties have caused this Amendment to be effective as of the last date written below. CITY: LICENSEE: City of Tustin, a municipal corporation New Cingular Wireless PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager . By: By: Print Name: Pri ame: �,'4"E S SIts: Its: T/ / Date: Date: ATTACHMENT 2-A THE PREMISES (See Attached Drawings) tik -CURR- I-E DA7E-=========j CoST Ur N R ON -TI DRA JNrS a ry ------------ pds ERICSSON \ 0d - � / / RAT JD JO _ 41-:16 1. SITE PLAN --- A -1 SITE PLAN ...... ............. lllk AT&T 1,5 A '2_2,VE -l% '3 03/07118 ONST RUCTIO N CONSTRUCTION DF �A INGS V RE -ATEA —R-0— ov"m --7 IAN s PREPARED FdS ....... I ... . ERICSSON I. Jo - — — — — — — — — — — R ENLARGED ... 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