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HomeMy WebLinkAboutResolution 2011-016 approving amendment to beacon hill communications MARANA RESOLUTION NO. 2011-16 RELATING TO TECHNOLOGY SERVICES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A SECOND AMENDMENT TO BEACON HILL COMMUNICATIONS SITE LEASE WITH THE ESTATE OF IRENE WELTER, DECEASED AND A FIRST AMENDMENT TO BEACON HILL TELECOMMUNICATIONS SITE SUBLEASE AGREEMENT WITH SIM- PLY BITS, LLC WHEREAS on June 23, 2009, via Marana Resolution No. 2009 -102, the Town Council ap- proved the Beacon Hill Telecommunications Site Sublease Agreement with Simply Bits, LLC and a First Amendment to the Beacon Hill Communication Site Lease and Settlement Agreement with the Estate of Irene Welter, Deceased; and WHEREAS Welter, Simply Bits, and the Town of Marana have reached agreements and ac- commodations which provide for Simply Bits to install additional equipment on Beacon Hill, pro- vide for compensation to Welter and the Town for the use of the premises on Beacon Hill by Simply Bits, and provide for coordination of the acquisition and use of the frequency operations of the Town and Simply Bits; and WHEREAS the Town Council finds that the adoption of this resolution is in the best interests of the Town and its residents. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, as follows: SECTION 1. The Second Amendment to Beacon Hill Communications Site Lease attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. SECTION 2. The First Amendment to Beacon Hill Telecommunications Site Sublease Agreement between Simply Bits and the Town of Marana attached to and incorporated by this refer- ence in this resolution as Exhibit B is hereby approved, and the Mayor is hereby authorized to exe- cute it for and on behalf of the Town of Marana. SECTION 3. The Town's Manager, Technology Services Director, and staff are hereby di- rected and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the Agreements referenced in Section 1 and Section 2 of this resolution. Marana Resolution 2011 -16 - 1 - { 00025060.DOC /} PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MA- RANA, ARIZONA, this 15 day of February, 2011. Mayor E6 Honea ATTEST: ®�� ®sA 's �c to W ocelyn Bronson, Town Clerk SEAL APPROVED AS TO FROM: rank C s idy, Town At rney Mauna Resolution 2011 -16 -2- {00025060.DOC /} F . ANN RODRIGUEZ , RECORDER 1 111111 IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII Recorded By: C IIIII IIII IN IvB, DEPUTY RECORDER , I PtLr _ 4 n SEQUENCE: 20110470647 1951 *� NO. PAGES: 5 SMARA 02/16/2011 TOWN OF MARANA N�b ALEASE 18:00 TOWN CLERK �Rrzor��` MAIL 11555 W CIVIC CENTER DR AMOUNT PAID: $11.00 MARANA AZ 85653 SECOND AMENDMENT TO BEACON HILL COMMUNICATIONS SITE LEASE THIS SECOND AMENDMENT TO BEACON HILL COMMUNICATIONS SITE LEASE (this "Second Amendment ") is entered into by and between the TOWN OF MARANA, an Arizona municipal corpo- ration ( "Town ") and THE ESTATE OF IRENE WELTER, DECEASED, BY AND THROUGH HER PER- SONAL REPRESENTATIVE, BILL WELTER ( "Welter " ). The Town and Welter are sometimes referred to collectively as the Parties. RECITALS A. In 2005, the Parties entered into the "Beacon Hill Communications Site Lease and Set- tlement Agreement," recorded in the Pima County Recorder's office on January 14, 2005, at Docket 12469, Page 3461 (the "Original Agreement "), concerning the Town's lease of a communications site on Beacon Hill. In 2009, the Parties entered into the "First Amendment to Beacon Hill Com- munications Site Lease and Settlement Agreement," recorded in the Pima County Recorder's office on December 30, 2010 at Docket 13966, Page 415 (the "First Amendment"). The site is specifically described in the Original Agreement and referred to in the Original Agreement, the First Amend - ment and in this Second Amendment as the "Premises." B. Parag 2 of the First Amendment authorized the Town to sublease the Premises to � p a third -party vendor, SIMPLY BITS, LLC, ( "Simply Bits "), for purposes of allowing equipment previ- ously installed on the Premises by Simply Bits to remain on the Premises. Paragraph 2 further pro- vided that any increase in the size or number of Simply Bits' antennas or dishes on the Premises re- quired Welter's and the Town's prior written approval C. The Parties now wish to modify the terms of the Original Agreement, as amended by the First Amendment, to allow Simply Bits to place additional equipment on the Premises and to modify Simply Bits' monthly rent for the equipment on the Premises. AGREEMENT NOW, THEREFORE, based on the foregoing Recitals, which are incorporated here by this ref- erence, the Parties agree as follows: 1. Additional Simply Bits Equipment. Upon obtaining all necessary and proper permits from the Town, Simply Bits shall be authorized to install and attach to the Building (as defined in the Original Welter Lease) a new antenna mounting structure no more than 20 feet high. The new antenna mounting structure shall be attached to the south corner of the Building. After installation of the new antenna mounting; structure, Simply Bits shall be permitted to move an existing three -foot dish to the new antenna mounting structure and to install two additional three -foot dishes to the new antenna mounting structure. Simply Bits shall be permitted to maintain no more than three dishes on the Premises. Additionally, Simply Bits shall be permitted to upgrade four existing one -foot pan- els for a total of up to nine square feet of panel or sector antennas at four attachment points on ei- ther the existing pipe structure or on the new antenna mounting structure to be installed as set forth in this paragraph 1. Any increase in the size or number of Simply Bits antennas or dishes on the Premises shall require prior written consent from the Town and Welter. {00024577.DOC / 6} - 1 - 1/10/2011 SECOND ,4mENDMENT TO MARANAI WELTER BEACON HILL LEASE S 2. Second Amendment Effective Date. This Second Amendment shall be effective on the date it is fully executed by the Parties. 3. Sublease rent. Prior to the installation of the new antenna mounting structure and the addi- tional equipment described in paragraph 1 above, the Town shall continue to collect the Sublease Rent described in paragraph 5 of the First Amendment, as adjusted by paragraph 5(a) of the First Amendment, and pay the Sublease Rent to Welter. On the first day of the first month following in- stallation of the new antenna mounting structure and the additional equipment described in para- graph 1 above, and on the first day of each month thereafter for so long as the Town's sublease with Simply Bits remains in effect, the Town shall collect from Simply Bits Four Hundred Dollars ($400) per month and pay to Welter as sublease rent Three Hundred Dollars ($300) per month, adjusted as follows (all of which together constitutes "Sublease Rent "): a. Annual adjustment. Each January 1 beginning on January 1, 2012, the previous year's Sub - lease Rent shall be adjusted upward by 3 %. b. Adjustments for tax and other costs. The Town shall pay to Welter any incremental increase in taxes or other costs owed by Welter relating to the Land (as defined in the Original Agree- ment) and resulting from the Town's sublease of the Premises to Simply Bits, including without limitation any property, rental, sales, use, or other taxes levied by any governmental entity, or the Town's proportionate share of any costs validly imposed on the Land by a third party in- cluding, by way of example, any proportionate costs of access to the Land. 4. Other terms. Except as modified by this Second Amendment, all terms and provisions of the Original Agreement, as modified by the First Amendment, shall remain in full force and effect and shall apply to this Second Amendment. 5. Recording. This Second Amendment shall be recorded by and at the expense of the Town in the office of the Pima County Recorder. 6. Conjlicts of interest. This Second Amendment is subject to the provisions of A.R.S. § 38 -511, which provides for cancelation of contracts by government entities in certain instances involving conflicts of interest. REMAINDER OFPAGEINTENTIONALLYLEFT BLANK {00024577Doc / 61 -2- 1/10 /2011 SECOND AMENDMENT TO MARANAI WELTER BEACON HILL LEASE IN WITNESS WHEREOF the Parties have executed this Second Amendment as of the date of the last signature below. THE TOWN OF MARANA, an Arizona THE ESTATE OF IRENE WELTER, DECEASED, municipal corporation BY AND THROUGH HER PERSONAL REPRESENTATIVE, BILL WELTER F 1 B B y :C,� / Its: Ma r Its: �� Date: Z Date: Q ATTEST: STATE OF ARIZONA ) County of Pima ) The foregoing instrument was acknowl- elyn C. ronson, Town Clerk edged before me this � day of January, 2011, by Bill Welter, as Personal Representa- ?Fank D AS FORM: tive of the Estate of Irene Welter, deceased. My commission expires: idy, Town At rney of Pub OFFICIAL SEAL @Mj AR ELY CAMPOS•AGUILAR NOTARY PUBLIC- ARIZONA PIMA COUNTY Comm, Exp. Feb. 15, 2014 {00024577.DOC / G} -3- 1/10/2011 SECOND AMENDMENT TO MARANA/ WELTER BEACON HILL I_.F.ASE FIRST AMENDMENT TO BEACON HILL TELECOMMUNICATIONS SITE SUBLEASE AGREEMENT BETWEEN SIMPLY BITS AND TOWN OF MARANA THIS FIRST AMENDMENT TO BEACON HILL TELECOMMUNICATIONS SITE SUBLEASE AGREEMENT BETWEEN SIMPLY BITS AND TOWN OF MARANA (this "First Amendment ") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation ("Town ") and SIMP- LY BITS, LLC, an Arizona limited liability company ("Simply Bits "). The Town and Simply Bits are sometimes referred to collectively as the Parties. RECITALS A. The Town is the lessee of a telecommunications site on Beacon Hill as documented in the "Beacon Hill Communications Site Lease and Settlement Agreement," entered into by the Town and the Estate of Irene Welter, deceased, by and through her personal representative, Bill Welter ( "Welter "), recorded in the Pima County Recorder's office on January 14, 2005, at Docket 12469, Page 3461 (the "Original Welter Lease "). The site is specifically described in the Original Welter Lease and referred to in the Original Welter Lease, the "Beacon Hill Telecommunications Site Sub- lease Agreement Between Simply Bits and Town of Marana" (the "Original Sublease Agreement ") and this First Amendment as the "Premises." B. In 2009, the Town and Welter entered into the "First Amendment to Beacon Hill Com- munications Site Lease and Settlement Agreement," recorded in the Pima County Recorder's office on December 30, 2010 at Docket 13966, Page 415 (the "First Amendment to Welter Lease "). Para- graph 2 of the First Amendment to Welter Lease authorized the Town to sublease the Premises to Simply Bits for the purposes of allowing equipment previously installed on the Premises by Simply Bits to remain on the Premises. Paragraph 2 further provided that any increase in the size or num- ber of Simply Bits' antennas or dishes on the Premises required Welter's and the Town's prior writ- ten approval C. Also in 2009, the Town and Simply Bits entered into the Original Sublease Agreement in which the Town subleased the Premises to Simply Bits for the purpose of allowing Simply Bits to operate, maintain and repair its existing equipment on the Premises. Paragraph 1 of the Original Sublease Agreement provided that any increase in the size or number of Simply Bits' antennas or dishes on the Premises required Welter's and the Town's prior written approval. D. In 2010, Simply Bits acquired a Federal Communications Commission Point to Point Mi- crowave Licensed Link Path (the "FCC Licensed Link ") between the Premises and the Marana Mu- nicipal Complex ( "MMC "). If acquired by the Town, this specific FCC Licensed Link will allow the Town to operate its Proteus Microwave Link equipment between the Premises and the MMC. The Town desires to acquire the FCC Licensed Link from Simply Bits for the Town's use. E. The Parties now wish to modify the terms of the Original Sublease Agreement to allow Simply Bits to place additional equipment on the Premises, to modify Simply Bits' monthly rent for the equipment on the Premises and to provide for the transfer of the FCC Licensed Link obtained by Simply Bits to the Town. {00024582.DOC / 7} - 1 - 1/10/2011 FIIRST,4mENDMENT To MARANA1 SIMPLY BITS BEACON HILL SUBLEASE AGREEMENT Now, THEREFORE, based on the foregoing Recitals, which are incorporated here by this ref- erence, the Parties agree as follows: 1. Additional Simply Bits Equipment. Upon obtaining all necessary and proper permits from the Town, Simply Bits shall be authorized to install and attach to the Building (as defined in the Original Welter Lease) a new antenna mounting structure no more than 20 feet high. The new antenna mounting structure shall be attached to the south corner of the Building. After installation of the new antenna mounting structure, Simply Bits shall be permitted to move an existing three -foot dish to the new antenna mounting structure and to install two additional three -foot dishes to the new antenna mounting structure. Simply Bits shall be permitted to maintain no more than three dishes on the Premises. Additionally, Simply Bits shall be permitted to upgrade four existing one -foot pa- nels for a total of up to nine square feet of panel or sector antennas at four attachment points on either the existing pipe structure or on the new antenna mounting structure to be installed as set forth in this paragraph 1. Any increase in the size or number of Simply Bits antennas or dishes on the Premises shall require prior written consent from the Town and Welter. 2. First Amendment Effective Date. This First Amendment shall be effective on the date it is fully executed by the Parties. 3. Sublease rent. Prior to the installation of the new antenna mounting structure and the addition- al equipment described in paragraph 1 above, Simply Bits shall continue to pay the Sublease Rent described in paragraph 4 of the Original Sublease Agreement, as adjusted by paragraph 4(a) of the Original Sublease Agreement, to the Town. On the first day of the first month following installation of the new antenna mounting structure and the additional equipment described in paragraph 1 above, and on the first day of each month thereafter for so long as the Town's sublease with Simply Bits remains in effect, Simply Bits shall pay sublease rent to the Town for the use of the Premises described in paragraph 1 above and for all Simply Bits' equipment located inside the Building in the amount of Four Hundred Dollars ($400) per month, adjusted as follows (all of which together con- stitutes "Sublease Rent"): a. Annual adjustment. Each January 1 beginning on January 1, 2012, the previous year's Sub- lease Rent shall be adjusted upward by 3 %. 4. Utilities Costs The Sublease Rent described in paragraph 3 above includes compensation to the Town by Simply Bits for utilities costs /electric consumption. Therefore, paragraph 5 of the Original Sublease Agreement, which provided that the Town had the right to survey the electric consumption of Simply Bits' equipment on the Premises and adjust the Sublease Rent to reflect cur- rent consumption if any survey disclosed that the average electric consumption of Simply Bits' equipment was greater than $30 per month, is rendered moot by this First Amendment. 5. Transfer of FCC Licensed Link. Simply Bits shall relinquish its right to the FCC Licensed Link in coordination with the Town. Simply Bits shall permit the Town to take any and all necessary ac- tion for the Town to acquire the right to the FCC Licensed Link. Simply Bits shall take any and all necessary action required by it, including abandoning and releasing its right to the FCC Licensed Link, to allow the Town to acquire the right to the FCC Licensed Link. If the Town acquires the FCC Licensed Link, the Town shall pay Simply Bits $2,405.00 for Simply Bits' costs in originally ac- quiring the FCC Licensed Link. This payment shall be due to Simply Bits on the first day of the first month following the transfer of the FCC Licensed Link to the Town. If the Town is unable to ac- {00024582.DOC / 7} -2- 1/10/2011 FTRSTAMENDMENT To MARANA /SIMPLY BITS BEACON HILL SUBLEASE quire the FCC Licensed Link, the Town will not be responsible for any of Simply Bits' costs in ac- quiring the FCC Licensed Link. 6. Coordination. The Parties shall coordinate with one another to insure that neither interferes with the other's frequency operations. 7. Other terms. Except as modified by this First Amendment, all terms and provisions of the Original Sublease Agreement shall remain in full force and effect and shall apply to this First Amendment. 8. Kecording. This First Amendment shall not be recorded. 9. Conflicts of interest. This First Amendment is subject to the provisions of A.R.S. § 38 -511, which provides for cancelation of contracts by government entities in certain instances involving conflicts of interest. IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date of the last signature below. THE TOWN OF MARANA, an Arizona SIMPLY BITS, LLC, an Arizona limited liability municipal corporation company By: B Name /Title: f. — c"e y Fedf" �'�..» y ,: e {„� Its: Date: 2.-3-11 Date: STATE OF X4w"'^ �! ss County o ftv►., ATTEST: The foregoing instrum was acknowledged before me on 2011, by oc lyn C. onson, Town Clerk Gam►- the of SIMPLY BITS, LLC, an APPROV AST FORM: Arizona ited liability company, on behalf of the LLC. F ank C dy, Tdwn Atto y My commission expires ' 14 t Public X N NU PETERS Notary Public— Arizona Pima County Eapkes 09/30/201 {00024582.DOC / 7} -3- 1/10/2011 FIRST AMENDMENT To AL4RANA /SIMPLY BITS BEACON HILL SUBLEASE