Loading...
HomeMy WebLinkAboutNew Cingular Wireless-2/20/2012 (2)" Cell Site No.: 54234 Cell Site Name: DESMIAW930A Fixed Asset No.: 10099312 Market: ND / SD / NE / MN / IA Address: 2528 West Airline Highway Please return this copy to: City Clerk & Finance Department 715 Mulberry Street Waterloo, IA 50703 SECOND AMENDMENT TO OPTION AND LEASE AGREEMENT THIS SECOND AMENDMENT TO OPTION AND LEASE AGREEMENT ("Second Amendment") dated as of the later date below is by and between City of Waterloo, Iowa, having a mailing address at 715 Mulberry Street, Waterloo, IA 50703 (hereinafter referred to as "Landlord") and New Cingular Wireless, PCS, LLC, a Delaware limited liability company, having a mailing address at 12555 Cingular Way, Suite 1300, Alpharetta, GA 30004 (hereinafter referred to as "Tenant"). WHEREAS, Landlord and Tenant (or their predecessors in interest) entered into a Option and Lease Agreement dated November 22, 2005, as amended by First Amendment to Option and Lease Agreement dated November 12, 2010, (hereinafter, collectively, the "Agreement"), whereby Landlord leased to Tenant certain Premises, therein described, that are a portion of the Property located at 2528 West Airline Highway, Waterloo, IA 50703; and WHEREAS, Landlord and Tenant desire to extend the term of the Agreement; and WHEREAS, Landlord and Tenant desire to modify, as set forth herein, the Rent (as defined below) payable under the Agreement; and WHEREAS, Landlord and Tenant desire to modify, as set forth herein, the Tenant's obligations to pay Rent to Landlord for a Rent Guarantee Period (as defined below); and WHEREAS, Landlord and Tenant desire to amend the Agreement to clarify the scope of Tenant's permitted use of the Premises; and WHEREAS, Landlord and Tenant desire to amend the Agreement to provide Tenant the right to enlarge the Premises; and WHEREAS, Landlord and Tenant, in their mutual interest, further wish to amend the Agreement as set forth below. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows: 1. Term. The term of the Agreement shall be amended to provide that the Agreement has a new initial term of sixty (60) months ("New Initial Term"), commencing on April 1, 2012. As of such New Term Commencement Date, all remaining renewal terms in the Agreement except as set forth herein shall be void and of no further force and consequence. The Agreement will be automatically renewed for up to five (5) additional sixty (60) month terms (each an "Extension Term") upon the same terms and conditions of the Agreement, as amended herein, without further action by Tenant, unless Tenant notifies Landlord in writing of Tenant's intention not to renew the Agreement at least sixty (60) days prior to the expiration of the then current Extension Term. Hereafter, the defined term "Term" shall include the New Initial Term and any applicable Extension Term. Landlord agrees and acknowledges that except that as such permitted use or other rights may Amendment — Rent Reduction -1- Cell Site No.: 54234 Cell Site Name: DESMIAW930A Fixed Asset No.: 10099312 Market: ND / SD / NE / MN / IA Address: 2528 West Airline Highway be amended herein, Tenant may continue to use and exercise its rights under the Agreement as permitted prior to the New Initial Term. 2. Termination. In addition to any rights that may exist in the Agreement, after the Rent Guarantee Period, as defined below, Tenant may terminate the Agreement at any time with thirty (30) days prior written notice to Landlord for any or no reason. 3. Modification of Rent. Commencing on April 1, 2012, the annual rent payable under the Agreement shall be Nine Thousand One Hundred Forty -Four and No/100 Dollars ($9,144.00) annually (the "Rent"). The Rent shall be payable annually in advance on April 1st of each year and shall continue during the Term, subject to adjustment, if any, as provided below. 4. Modification of Tenant's Obligation to Pay — Rent Guarantee. Notwithstanding Tenant's obligations to pay Rent set forth under the Agreement, for a thirty-six (36) month period commencing April 1, 2012, and ending March 31, 2015 ("Rent Guarantee Period"), Tenant's obligation to pay Rent is guaranteed and such obligation will not be subject to offset or cancellation by Tenant, except as due to loss from casualty or condemnation. Notwithstanding the foregoing, if Landlord exercises any of Landlord's rights to terminate the Agreement, if any, Tenant will be released from any and all of its obligations to pay Rent during the Rent Guarantee Period as of the effective date of the termination. In addition, Tenant shall be released from any and all of its obligations to pay Rent during the Rent Guarantee Period if any of the following shall occur: (a) Landlord is in breach of the Agreement, including but not limited to any default under the terms of the Agreement beyond any applicable grace and cure period; (b) there is a foreclosure of the Property; (c) the Landlord shall require Tenant to relocate Tenant's equipment and facilities to a location that is not acceptable to Tenant in its reasonable business judgment if allowed for in the Agreement; (d) any existing government permits and/or approvals cannot be obtained or maintained, at no fault of the Tenant; or (e) Tenant terminates the Agreement pursuant to the terms of the Expansion of Permitted Use section as modified below. If the Agreement is further modified in the future with an obligation for Tenant to pay additional Rent, the payment of Rent guarantee established in this paragraph will not be diminished or limited, but such Rent guarantee will not extend to that future additional Rent obligation. 5. Future Rent Increase / Extension Term Increase. The Agreement is amended to provide that commencing on April 1, 2017, Rent shall increase by three percent (3%) and at the beginning of each Extension Term, as applicable. 6. Expansion of Permitted Use. Tenant, its personnel, invitees, contractors, agents, subtenants, or its authorized subtenants, or assigns may use the Premises, at no additional cost or expense, for the transmission and reception of any and all communications signals and to modify, supplement, replace, upgrade, expand, including the number and type(s) of antennas, or refurbish the equipment and/or improvements thereon (collectively, "Communications Facility"), or relocate the same within the Premises at any time during the term of the Agreement, 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. Landlord shall reasonably cooperate in obtaining governmental and other use permits or approvals necessary or desirable for the foregoing permitted use. If Landlord does not comply with the terms of this section, in addition to any other rights it may have at law, Tenant may terminate the Agreement and shall have no further liability to Landlord. If Landlord does not comply with the terms of this section, Tenant will have the right to Amendment — Rent Reduction -2- Cell Site No.: 54234 Cell Site Name: DESMIAW930A Fixed Asset No.: 10099312 Market: ND / SD / NE / MN / IA Address: 2528 West Airline Highway exercise any and all rights available to it under law and equity, including the right to cure Landlord's default and to deduct the costs of such cure from any monies due to Landlord from Tenant. 7. Expansion of the Premises. Landlord grants Tenant the right, to the extent practicable and on a space available basis, to enlarge the Premises or to make space available on the Property for Tenant so that Tenant or its authorized subtenants may implement any necessary modifications, supplements, replacements, refurbishments, or expansions to the Communications Facility or to any equipment related thereto, or for any other reasons, as determined by Tenant in its sole discretion. Should Tenant exercise the right to expand the Premises, Tenant will pay and Landlord will accept as additional Rent under the Agreement an amount equal to the then current Rent calculated on a per square foot basis as multiplied by each additional square foot added to the Premises. Upon notice to Landlord, a description and/or depiction of the modified Premises ground will become part of the Agreement without any additional action on the part of Tenant and Landlord; however, at the request of Tenant, the parties will execute a Memorandum of Agreement in recordable form memorializing the modification of the ground space of Landlord's Property, which either party may record at its option. 8. Acknowledgement. Landlord acknowledges that: 1) this Second Amendment is entered into of the Landlord's free will and volition; 2) Landlord has read and understands this Second Amendment and the underlying Agreement and, prior to execution of this Second Amendment, was free to consult with counsel of its choosing regarding Landlord's decision to enter into this Second Amendment and to have counsel review the terms and conditions of this Second Amendment; 3) Landlord has been advised and is informed that should Landlord not enter into this Second Amendment, the underlying Agreement between Landlord and Tenant, including any termination or non -renewal provision therein, would remain in full force and effect. 9. Notices. Paragraph 17 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 Tenant: New Cingular Wireless, PCS, LLC Attn: Network Real Estate Administration Re: Cell Site # 54234 Cell Site Name DESMIAW930A (IA); Fixed Asset No.: 10099312 12555 Cingular Way, Suite 1300 Alpharetta, GA 30004 With a required copy of the notice sent to the address above to AT&T Legal at: New Cingular Wireless, PCS, LLC Attn: AT&T Legal Department Re: Cell Site # 54234 Amendment — Rent Reduction - 3 - Cell Site No.: 54234 Cell Site Name: DESMIAW930A Fixed Asset No.: 10099312 Market: ND / SD / NE / MN / IA Address: 2528 West Airline Highway Cell Site Name DESMIAW930A (IA); Fixed Asset No: 10099312 15 East Midland Avenue Paramus, NJ 07652 And as to Landlord: City of Waterloo, Iowa 715 Mulberry Street Waterloo, IA 50703 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." 10. Sale of Property / Rental Stream Offer. a. Sale of Property. If Landlord, at any time during the Term of the Agreement, decides to sell, subdivide or rezone any of the Premises (or any interest therein), all or any part of the Property or surrounding property (or any interest therein), to a purchaser other than Tenant, Landlord acknowledges and agrees that such sale, subdivision or rezoning shall be subject to the Agreement and Tenant's rights thereunder. Landlord agrees that it shall promptly notify Tenant in writing such sale, subdivision or rezoning. b. Rental Stream Offer. If at any time after the date of this Second Amendment, Landlord receives a bona fide written offer from a third party or receives a modified written offer from a third party seeking an assignment of the rental stream associated with the Agreement ("Rental Stream Offer"), Landlord shall immediately furnish Tenant with a copy of the Rental Stream Offer. Tenant shall have the right within ninety (90) days after it receives such copy and representation to match the Rental Stream Offer and agree in writing to match the terms of the Rental Stream Offer. Such writing shall be in the form of a contract substantially similar to the Rental Stream Offer. If Tenant chooses not to exercise this right of first refusal or fails to provide written notice to Landlord within the ninety (90) day period, Landlord may assign the rental stream pursuant to the Rental Stream Offer, subject to the terms of the Agreement. If Landlord attempts to assign or transfer rent payments without complying with this Paragraph, the assignment or transfer shall be void, Tenant shall not be responsible for any failure to make payments under the Agreement and reserves the right to hold payments due under the Agreement until Landlord complies with this Paragraph. c. If Landlord attempts to transfer ownership to a third party in accordance with (a) or (b) without fully complying with the terms and conditions of (a) and (b) hereinabove, such a transfer shall be void and of no further force or effect. Landlord agrees to indemnify Tenant for any and all claims associated with such a purported transfer. 11. Charges. All charges payable under the Agreement such as utilities and taxes shall be billed by Landlord within one (1) year from the end of the calendar year in which the charges were incurred; any charges beyond such period shall not be billed by Landlord, and shall not be payable by Tenant. The foregoing shall not apply to monthly rent which is due and payable without a requirement that it be billed by Landlord. The provisions of this subsection shall survive the termination or expiration of the Agreement. Amendment — Rent Reduction -4- Cell Site No.: 54234 Cell Site Name: DESMIAW930A Fixed Asset No.: 10099312 Market: ND / SD / NE / MN / IA Address: 2528 West Airline Highway 12. Memorandum of Agreement. Either party will, at any time upon fifteen (15) days prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum of Agreement substantially in the form of the Attachment 1. Either party may record this memorandum at any time, in its absolute discretion. 13. Other Terms and Conditions Remain. In the event of any inconsistencies between the Agreement and this Second Amendment, the terms of this Second Amendment shall control. Except as expressly set forth in this Second 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 Second Amendment. 14. Capitalized Terms. All capitalized terms used but not defined herein shall have the same meanings as defined in the Agreement. [NO MORE TEXT ON THIS PAGE - SIGNATURES TO FOLLOW ON NEXT PAGE] Amendment — Rent Reduction -5- Cell Site No.: 54234 Cell Site Name: DESMIAW930A Fixed Asset No.: 10099312 Market: ND / SD / NE / MN / IA Address: 2528 West Airline Highway IN WITNESS WHEREOF, the parties have caused their properly authorized representatives to execute and seal this Second Amendment on the date and year below. LANDLORD: City of Waterloo, Iowa qa, Date:AA4�a.,6 Amendment — Rent Reduction -6- TENANT: New Cingular Wireless, PCS, LLC, a Delaware limited liability company By: ATV Mobility Corporation Its: M ger Print Name: cRcs/g-c.�L k\ Tc.(+c-`. Title: Real Estate & Construction Manager Date: 37/ 2/ Cell Site No.: 54234 Cell Site Name: DESMIAW930A Fixed Asset No.: 10099312 Market: ND / SD / NE / MN / IA Address: 2528 West Airline Highway LANDLORD ACKNOWLEDGEMENT i LrL I certify that I know or have satisfactory evidence that >uckT'Iark is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it as the Mayor of the City of Waterloo, Iowa to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: 420 f(2 Notary Seal 3I g44-1 910 (Seal) Amendment — Rent Reduction (Legibly Print or Stamp Name o otary) NotaryPublic in and for the State of My appointment expires: -7- Cell Site No.: 54234 Cell Site Name: DESMIAW930A Fixed Asset No.: 10099312 Market: ND / SD / NE / MN / IA Address: 2528 West Airline Highway TENANT ACKNOWLEDGEMENT STATE OF st.4.f,ao_ ) ) SS. COUNTY OF ) I certify that I know or have satisfactory evidence that s�s!U A (X 1 —c. Q is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the (2 a C 6inaics of AT&T Mobility Corporation, the Manager of New Cingular Wireless, PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: a\ \D:\ j KATHY LYNN LENERS Notary Public Minnesota My Commission Expires Jan. 31✓ 2016 Amendment — Rent Reduction (Signgture of Notary) Lerv6.0-> (Legibly Print or Stamp Name of Notary) Notary Public in and for the State of My appointment expires: )\3)1cy-u -8- Cell Site No.: 54234 Cell Site Name: DESMIAW930A Fixed Asset No.: 10099312 Market: ND / SD / NE / MN / IA Address: 2528 West Airline Highway Amendment — Rent Reduction Attachment 1 Memorandum of Agreement -9-