2.6. ERMUSR 11-13-2012 Elk River
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Municipal Utilities UTILITIES COMMISSION MEETING
TO: FROM:
Elk River Municipal Utilities Commission Troy Adams, P.E. —General Manager
John Dietz—Chair
Daryl Thompson—Vice Chair
Al Nadeau—Trustee
MEETING DATE: AGENDA ITEM NUMBER:
November 13, 2012 2.6
SUBJECT:
Amendment to Tower Attachment Agreement
BACKGROUND:
On June 1, 2010, ERMU executed a non-exclusive tower attachment lease agreement for our
Auburn Street Water Tower with Sprint Spectrum Realty Company, LP. This agreement allows
Sprint to attach a specific number of cellular antennas to our water tower and house the related
system equipment in the base of the tower.
DISCUSSION:
An agent for Sprint has contacted ERMU for approval to add additional antennas and equipment
at this location. The original antennas and equipment would be removed at a later date after the
new standalone system is running. This overlap may last a year.
ERMU has negotiated that the original agreement terms be applied to the additional antennas and
equipment. The lease payment would be per month, but would be equivalent to the current
annual payment for the existing antennas and equipment. The lease payment for the additional
antennas and equipment would be in addition to the lease payment for the original antennas and
equipment. ERMU's legal counsel has drafted an amendment to the original agreement. This
amendment is attached for Commission review. Sprint is currently undergoing a second legal
review of this amendment.
ACTION REQUESTED:
Staff requests the Commission authorize staff to execute this amendment, or an amendment
similar in intent, upon Sprint's legal review and approval.
ATTACHMENTS:
• First Amendment to Non-Exclusive Tower Attachment Lease Agreement
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Reliable Public
Power Provider P O W E R E D T o S E R V E
First Amendment to
Non-Exclusive Tower Attachment Lease Agreement
This First Amendment to Non-Exclusive Tower Attachment Lease Agreement ("First
Amendment") is executed this day of , 2012 by and
between Elk River Municipal Utilities ("Lessor") and Sprint Spectrum Realty Company, LP, a
Delaware limited partnership ("Lessee").
WHEREAS, Lessor and Lessee's predecessor and interest, Sprint Spectrum LP, entered
into a Non-Exclusive Tower Attachment Lease Agreement ("Lease") on June 1, 2010; and
WHEREAS, the Lease allows Lessee to install, maintain and operate a
telecommunications facility on Lessor's property located at 19533 Auburn Street NW, in the
City of Elk River(the Property); and
WHEREAS, Lessee has requested that the Lease be amended to allow Lessee, or its
authorized agents, to make the following modifications to Lessee's existing telecommunications
facility on the Property:
• Install two new equipment cabinets;
• Relocate three existing antennas;
• Install three new antennas; and
• Remove existing equipment cabinets and certain antennas.
WHEREAS, Lessor agrees to amend the Lease, subject to the terms and conditions of this
First Amendment.
NOW THEREFORE, for and in consideration of the terms and mutual promises herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Lessor and Lessee agree as follows:
1. New Exhibit C
a) The Lease is hereby amended to substitute the attached "Amended Exhibit
C" in place of the existing Exhibit C to the Lease.
b) Amended Exhibit C contains the following:
• Identifies the size and proposed location for the two new
equipment cabinets, including temporary and permanent locations
if the new cabinets will be moved once the existing cabinets are
removed;
• Identifies the size, type and proposed location of the three new
antennas;
• Identifies the proposed location for relocation of the existing
antennas;
• Identifies the time schedule for:
i. Installation of the two new equipment cabinets;
ii. Removal of the existing equipment cabinets;
iii. Relocation of the new equipment cabinets;
iv. Relocation of the existing antennas;
v. Installation of the new antennas; and
vi. Removal of the existing antennas.
c) No new equipment shall be brought to the Property or installed, until
Amended Exhibit C, attached to this First Amendment, is approved in
writing by Lessor. Such Amended Exhibit C attached hereto shall be
deemed approved upon full execution of this First Amendment.
2. Consideration
a) In addition to the consideration provided for in Paragraph 5 of the Lease,
Lessee shall pay additional consideration to Lessor during the transition
period when additional space on the Property is used for the temporary
location of the new equipment cabinets and new antennas prior to
removal of the existing equipment on the Premises, in the amount of
$1,993 per month in calendar year 2012, $2,073 per month in calendar
year 2013, and $2,156 per month in calendar year 2014 and beyond
("Additional Consideration") for each month beginning on the day that
new cabinets or antennas are brought on to the Property and ending on the
day that all of the existing equipment cabinets and existing antennas
("Existing Equipment") are removed from the Property and Lessee has no
more than 3 equipment cabinets and 3 antennas on the Property. The
Additional Consideration shall be due and payable on the same date as the
base rent for 2012, 2013, and 2014, and partial months shall be prorated.
All prepaid but unearned Additional Consideration shall be returned to
Lessee within thirty (30) days following written notice to Lessor of the
removal of the Existing Equipment. The Additional Consideration shall
not be subject to the annual escalation rate set forth in Paragraph 5(a).
b) In addition, Lessee shall reimburse Lessor for all of Lessor's costs to
consider, prepare and administer this First Amendment, as provided in
Section 5 (c) of the Lease, within thirty (30) days of receipt of an invoice
together with reasonable documentation evidencing such costs.
c) To secure payment for the reimbursement of costs and the Additional
Consideration provided for in this First Amendment, Lessee shall deliver
to Lessor a performance bond in the amount of$30,000 prior to moving
any new equipment or antennas to the Property. Lessor shall hold this
performance bond until all of the modifications contemplated by this First
Amendment are completed and all amounts due for reimbursement of
costs and Additional Consideration pursuant to this First Amendment have
been paid by Lessee, and shall release the performance bond to Lessee at
that time. Lessor may deduct from the performance bond any amounts
due under this First Amendment and unpaid 30 days after written demand
by Lessor.
3. Compliance with Lease
Except as specifically modified by this First Amendment, the Lease shall remain in effect
pursuant to its terms and Lessee shall strictly follow the requirements of, and obtain all approvals
required by, the Lease, and shall fully comply with the Lease in all other respects. Each of the
parties represents and warrants that it has the right, power, legal capacity and authority to enter
into and perform its respective obligations under this First Amendment.
4. Future Amendments
Neither this First Amendment nor the Lease may be modified in any other way except in
writing approved and signed by both parties.
IN WITNESS WHEREOF, Lessor and Lessee have executed this First Amendment to
Non-Exclusive Tower Attachment Lease Agreement as of the date and year first above written.
LESSOR:
ELK RIVER MUNICPAL UTILITIES
By:
Its: Chair
By:
Its: General Manager
LESSEE:
SPRINT SPECTRUM REALTY COMPANY, LP,
a Delaware Limited Partnership
By:
Its:
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