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HomeMy WebLinkAboutOrdinances - ORD-11-1564 - 11/07/2011 - SECOND AMDMT OPTION LEASE AGMT NEW CINGULARORDINANCE NO.ORD-I 1-1564 AN ORDINANCE AUTHORIZING EXECUTION OF A SECOND AMENDMENT TO AN OPTION AND STRUCTURE LEASE AGREEMENT BETWEENTHE CITY OF MCHENRY AND NEW CINGULAR WIRELESS LLC FOR A PORTION OF PROPERTY LOCATED AT 4225 SIOUX LANE, IN THE CITY OF MCHENRY, MCHENRV COUNTY, ILLINOIS WHEREAS, the City of N/IcHenry hereinafter -City", McHenry County., Illinois, is a home rule municipality as contemplated under Article VIL Section 6, of the Constitution of the State of Illinois, and the passage of this Ordinance constitutes an exercise of the City's home rule powers and functions as granted in the Constitution of the State of Illinois; and WHEREAS, the City of McHenry is the owner and lessor and New Cingular Wireless LLC is the tenant and lessee of property located at 4225 Sioux Lane legally described on attached Exhibit "A". NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF MCHENRY. MCHENRY COUNTY. ILLINOIS AS FOLLOWS: SECTION 1: The Second Amendment to Option and Structure Lease Agreement, bearing the date of November 7, 2011, between the City of McHenry, an Illinois municipal corporation, ("Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company ("Tenant") be and the same is hereby approved. A complete and accurate copy of said agreement is attached to this ordinance and incorporated herein by reference. SECTION 2: The Mayor and City Clerk are hereby authorized to affix their signatures as Mayor and City Clerk to said lease agreement for the uses and purposes therein set forth. SECTION 3: All Ordinances or parts thereof in conflict with the terms and provisions hereof are hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be published in pamphlet fiorm by and under the authority of the corporate authorities of the City of McHenry, McHenry County, Illinois. SECTION 5: This Ordinance shall be in full force and effect from and after its passage, approval, and publication in pamphlet form as provided by law. PASSED AN D APPROVED TH IS 7 1 H DAY OF NOVEMBER, 2011 Voting Aye: Santi, Glab, Schaefer, Blake, Wimmer, Peterson, Condon-_ Voting Nay: None. Not Voting: None. Abstaining: None. Absent: None. Susan E. Low Mayor ATTEST: /�A�L C.Q- C - &nje Janic9/C. 3�ves Cit� t��) C Market: Central-IL/Wi Cell Site Number: IL0831 Cell Site Name. Downtown McHenry Fi.ed Asset Number 10127947 SECOND AMENDMENT TO OPTION AND STRUCTURE LEASE AGREEMENT THIS SECOND AMENDMENT TO OPTION AND STRUCTURE LEASE AGREEMENT ("Second Amendment"), is made effective as of November 1, 2011 by and between the City of McHenry, an Illinois municipal corporation, having a mailing address of 333 South Green Street, McHenry, Illinois 60050 ("Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a mailing address of 12555 Cingular Way, Suite 1300, Alpharetta, GA 30004 ("Tenant"). WHEREAS, Landlord and Tenant entered into an Option And Structure Lease Agreement dated August 26, 2008 and First Amendment thereto dated May 18, 2009 (collectively "Agreement") whereby Landlord leased to Tenant certain Premises, therein described, that are a portion of the property located at 4225 Sioux Lane, McHenry, Illinois 60050 ("Property"); and WHEREAS, Landlord and Tenant desire to amend the Agreement to increase the size of the Premises; and WHEREAS, Landlord and Tenant desire to adjust the rent in conjunction with the modifications to the Agreement contained herein; and WHEREAS, Landlord and Tenant, in their mutual interest, wish to amend the Agreement as set forth below accordingly. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows: 1. Lease of Premises. Landlord agrees to increase the size of the Premises leased to Tenant in order to accommodate Tenant's expansion needs. As specified below, Landlord leases to Tenant the Premises as more completely described on the attached Exhibit 1-A, which supplements Exhibit I to the Agreement: A. Landlord hereby leases to Tenant, and the defined term "Premises" hereafter includes, approximately sixty-three (63) additional square feet of ground space on the Property ("2010 Expansion"). B. Effective as of the start of construction for installation of Tenant's generator, Landlord leases to Tenant, and the defined term "Premises" thereafter includes, approximately fifty- nine (59) additional square feet of ground space on the Property ("Generator Expansion"). 1 Market: Central-IL/Wl Cell Site Number: IL0831 Cell Site Name Downtown McHenry Fixed Asset Number 10127947 2. Rent. A. Back Rent. In consideration of Tenant's 2010 Expansion, Tenant shall pay a lump sum amount of back Rent to Landlord for the period December 1, 2010 through October 31, 2011 in the amount of Six Thousand Two Hundred Thirty -One and 17/100 Dollars ($6,231.17), payable within thirty (30) days of execution of this Second Amendment. B. 2010 Expansion. In consideration of Tenant's 2010 Expansion, Rent shall be increased to a total of Two Thousand Three Hundred Seventy and 00/100 Dollars ($2,370.00) per month commencing on November 1, 2011, subject to further adjustments as provided in the Agreement. C. Generator Expansion. Commencing on the first day of the month following the date that Tenant commences construction for installation of its generator, Rent shall be further increased to a total of Two Thousand Nine Hundred and 50/100 Dollars ($2,900.50) per month, subject to further adjustments as provided in the Agreement. If Tenant vacates any part of the Additional Premises specified in this Second Amendment, then upon thirty (30) days' prior written notice to Landlord Rent shall decrease in conjunction therewith by a proportional amount according to what is then charged, subject to further adjustments as provided in the Agreement. Any part of the Additional Premises so vacated will be restored by Tenant within one hundred twenty (120) days of notice thereof and as otherwise required by Section 13 of the Agreement. 3. Memorandum of Lease. 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 lease substantially in the form of Attachment 1 hereto. Either party may record such memorandum at anytime, in its absolute discretion. 4. 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. 5. 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 their properly authorized representatives to execute this Second Amendment as follows: (signature page follows) PA Market Central-IL/Wi CeJ1 Site Number: J10833 Cell Site Name Downtown McHenry Fixed Asset Numbe, 10127947 LANDLORD City of McHenry By: Name: Z�USAAJ LOC.-) Title: tv� A \/ C) Date: / 1�-- 10/ - )-0 N STATE OF -,rL-L-4 AJ 0 IS ) SS: COUNTY OF l"J 9:�4- 1, the undersigned, a Notary Public in and for the State of Wisconsin, hereby certify that Low ol )4 V C) 0— of the City of McHenry, known to me to be the same person who signed the foregoing agreement, personally appeared before me this day and acknowledged that, pursuant to his authority, he signed said agreement as his free and voluntary act of said entity, for the uses and purposes therein stated. Witness my hand and official seal the 101-t-6 day of DJ2--Q-e-,knbZ r 2011. NNIF "Pow 2 =01 [king P.11WAU116111 'OFFICIAL SEAL" KATHLEEN M KUNZFR tale : Notary Public. State of Illinois My Commission Expires 04/29120]12 TENANT New Cingular Wireless PCS, LLC By: AT&T Mobility Corporation its: Manager /�', 14 By: :�Ize�--- -i 164 <;7-M�CW Name: Title: Date: tl )-Olt STATE OF ILLINOIS SS: COUNTY OF COOK 1, the undersigned, a Notary Public in Qd fCg1X-*,0cj4� the State of Illinois, hereby certify hat M-9. Reet, Construction and Real Estate 41a;-r1VwI of AT&T Mobility Corporation, Manager of New Cingular Wireless PCS, LLC, known to me to be the same person who signed the foregoing agreement, personally appeared before me this day and acknowledged that, pursuant to his authority, he signed said agreement as his free and voluntary act of said entity, for the uses and purposes therein stated. Witne, my hand a d official seal the AS - day 0 t)�j 2011. I I ILA 11� I In ri MA A o - N �'ry P u D1() ta OFFICIAL SM KWERLY A COLE" NOTARY pUeuC - STATE OF LUNOIS W C OWSSION EvIRE&DISM5 91 arket Central-iL/Wl Cell Site Number IL0831 Cell Site Name: Downtown McHenry Fixed Asset Number: 10127947 hop EXHIBIT I -A CD 1A -a im rvi Notes I THIS EXHIBIT MAY BE REPLACED BY A LAND SURVEY AND/OR CONSTRUCTION DRAWINGS OF THE PREMISES ONCE RECEIVED BY TENANT. 2. THE TYPE, NUMBER AND MOUNTING POSITIONS AND LOCATIONS OF ANTENNAS AND TRANSMISSION LINES ARE ILLUSTRATIVE ONLY. ACTUAL TYPES, NUMBERS AND MOUNTING POSITIONS MAY VARY FROM WHAT IS SHOWN ABOVE. Market. Central-IL/Wi Cell Site Number: IL0831 Cell Site Name: Downtown McHenry Fixed Asset Number. 10127947 ATTACHMENT I MEMORANDUM OF LEASE Prei3ared by and return to: Lisa Castello AT&T Mobility 930 National Pkwy, 4th Fl. Schaumburg, IL 60173 MEMORANDUM OF LEASE This Memorandum of Lease is entered into on November 1, 2011, by and between the City of McHenry, an Illinois municipal corporation, having a mailing address of 333 South Green Street, McHenry, Illinois 60050 ("Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a mailing address of 12555 Cingular Way, Suite 1300, Alpharetta, GA 30004 ("Tenant"). 1. Landlord and Tenant entered into a certain Option And Structure Lease Agreement dated August 26, 2008, First Amendment thereto dated May 18, 2009, and Second Amendment thereto dated November 1, 2011 (collectively "Agreement") for the purpose of installing, operating and maintaining a communications facility and other improvements as set forth therein. 2. The initial lease term will be five (5) years ("Initial Term") commencing on the Effective Date of the Agreement, with four (4) successive, automatic five (5) year renewals. 3. The portion of the Property being leased to Tenant ("Premises") is described in part in Exhibit I annexed hereto. 4. All capitalized terms used but not defined herein shall have the same meanings as defined in the Agreement. 5. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions of the Agreement, the provisions of the Agreement shall control. The Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Agreement. (signature page follows) Page 1 of 3 Market: Central-IL/Wl Cell Site Number: IL0831 Cell Site Name Downtown McHenry Fixed Asset Number: 10127947 IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. LANDLORD City of McHenry By: e '�� Name: A & E Lo k/i Title: MIA\/O(L Date: I'A 101. -)L� U STATEOF SS: COUNTY OF AAC fq fVj 1, the undersigned, a Notary Public !in and for the State of Wisconsin, hereby Certify that A It-) 6. 1 M)4yc 12- of the City of McHenry, known to me to be the same person who signed the foregoing agreement, personally appeared before me this day and acknowledged that, pursuant to his authority, he signed said agreement as his free and voluntary act of said entity, for the uses and purposes therein stated. Witness my hand and official seal the I Q-111) dayof [)e(Ce-rnhJ�r 2011. rAk Bill TENANT New Cingular Wireless PCS, LLC By: AT&T Mobility Corporatio Its: Manager 77 By: Name: Seettn �-t 4Z 5�7-1&jvet4 Title: Date: /.) - tt--All STATE OF ILLINOIS SS: COUNTY OF COOK 1, the undersigned, a Notary Public in -and fqL ( Aakk- the State of Illinois, hereby ce VN I Rtyet, Construction and Real Estate 0 AT&T Mobility Corporation, Manager of New Cingular Wireless PCS, LLC, known to me to be the same person who signed the foregoing agreement, personally appeared before me this day and acknowledged that, pursuant to his authority, he signed said agreement as his free and voluntary act of said entity, for the uses and purposes therein stated. Witness my hand and official Seal the V�� day of braw e3c-L-- � 2011. Notary Public LNMOTAR.�. ZLR Yj OFI.,ICIAL SEAL99 OFFICIAL WA XAT14LEJ-�N 7MrUNZER KJMBERLY A COLEMAN Notary Public. State of Illinois NOTARY PUBUC - STATE OF LUNOIS 2012 P� "so ily Commiss . 0412912012 My COIAMISSiON EXPIRES'.04M5 ..,onExPlrcs Page 2 of 3 Market Central-IL/Wi Cell Site Number IL0831 Cell Site Name Downtown McHenry Fixed Asset Number: 10127947 EXHIBIT I DESCRIPTION OF PREMISES Description of Premises to the Memorandum of Lease dated November 1.20_11, by and between the City of McHenry, an Illinois municipal corporation, as Landlord, and New Cingular Wireless PCS LLC, a Delaware limited liability company, as Tenant, with regard to the Property known as: Common address: 4225 Sioux Lane, McHenry, IL 60050 PIN: 09-34-279-001, 002, 003, & 004 Legal description: The North 41.0 feet of Lot 45, and all of Lots 46, 47 and 48 in Cooney Heights Third Addition to McHenry, a Sub- division of part of the Northeast Quarter of Section .34, Township 45 North, Range 8 East of the Third Principal Meridian, according to the Plat thereof recorded May 10, 1955 as Document No. 292379 in Book 12 of Plats, page 23, in McHenry County, Illinois. The Premises include, but are not limited to, the Equipment Space, which is described as follows: A portion of the Property consisting of: (i) approximately 200 square feet (10' x 20') of ground space forthe placement of Tenant's radio cabinets, plus the airspace above such spaces; (i i) space for any structural steel or other improvements to support Tenant's equipment; (iii) an additional approximately 63 square feet of ground space for the placement of Tenant's radio cabinets, plus the airspace above such spaces; and (iv) an additional approximately 59 square feet of ground space for the placement of Tenant's generator, plus the airspace above such space. Page 3 of 3