Loading...
HomeMy WebLinkAboutOrdinances - ORD-16-1806 - 09/06/2016 - EXECUTION OF OPTION AGREE. W/LANDMARK DIVIDEND FORORDINANCE NO. ORD-16-1806 AN ORDINANCE AUTHORIZING EXECUTION OF OPTION AGREEMENTS BETWEEN LANDMARK DIVIDEND LLC AND THE CITY OF MCHENRY PERTAINING TO EXISTING TELECOMMUNICATION LEASE AGREEMENTS BETWEEN THE CITY OF MCHENRY AND T-MOBILE CENTRAL LLC AND NEW CINGULAR WIRELESS LLC ON PROPERTY LOCATED AT 4225 SIOUX LANE WHEREAS, the City of McHenry ("City"), McHenry County, Illinois is a home rule municipality as contemplated under Article VII, 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 is the ("OWNER") of property legally described on attached Exhibit A and Landmark Dividend LLC is the ("TENANT") of an Option and Structure Lease Agreement between the OWNER and New Cingular Wireless PCS, LLC, a Delaware Limited Liability Corporation and Site Agreement Between the City and Voicestream GSM I Operating Company LLC for the Use of certain City property known as the Sioux Lane Elevated Water Storage Tank. NOW THEREFORE BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS AS FOLLOWS: SECTION 1: The Option Agreement dated August 31, 2016 between Landmark Dividend LLC and the City of McHenry pertaining to the Option and Structure Agreement between the City of McHenry and New Cingular Wireless PCS, LLC a Delaware LLC, as amended, is hereby approved. SECTION 2: The Option Agreement dated August 31, 2016 between Landmark Dividend LLC and the City of McHenry and Voicestream GSM I Operating Company LLC for the Use of certain City property known as the Sioux Lane Elevated Water Storage Tank is hereby approved. SECTION 3: The Mayor and City Clerk are hereby authorized to affix their signatures as Mayor and City Clerk to said option agreements. Complete and accurate copies of said agreements are attached to this ordinance as Exhibit B and incorporated herein by reference. SECTION 4: This Ordinance shall be published in pamphlet form 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 AND APPROVED THIS 6th-DAY OF SEPTEMBER 2016. Voting Aye: CURRY, CONDON. PETERSON, SCHAEFER, GLAB, SANTI Voting Nay: NONE Not Voting: NONE Abstain: NONE Absent: WIMMER �ld!tu U"rc- Deputy City Clerk 1 Mayor Susan E. Low LEGAL DESCRIPTION OF THE PROPERTY An interest in land, said interest being over a portion of the following described parent parcel: The North 41.0 feet of Lot 45, and all of Lots 46, 47 and 48 in Cooney Heights Third Addition to McHenry, a Subdivision 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. AND BEING the same property conveyed to City of McHenry, a municipal corporation from Martin Cooney by Indenture dated August 11, 1960 and recorded August 29, 1960 in Deed Book 636, Page 484. Tax Parcel No. 09-34-279-002 Exhibit B Option Agreements CERTIFICATION I, Marcia M. Geraghty, do hereby certify that I am the duly appointed, acting and qualified Deputy Clerk of the City of McHenry, McHenry County, Illinois, and I do hereby further certify that the attached document is a true and correct copy of Ordinance No. ORD-16- 1806, An Ordinance Authorizing Execution of Option Agreements between Landmark Dividend LLC and the City of McHenry Pertaining to Existing Telecommunication Lease Agreements between the City of McHenry and T-Mobile Central LLC and New Cingular Wireless LLC on Property Located at 4225 Sioux Lane, passed and approved by the McHenry City Council at its regularly scheduled meeting on September 6, 2016. I do further certify that the original, of which the attached is a true and correct copy, is entrusted to me as the Deputy Clerk of said City for safekeeping, and that I am the lawful custodian and keeper of the same. Given under my hand and corporate seal of the City of McHenry this 18th day of October 2016. lw"Ua-2 Marcia M. Geraghty, Deputy ity jerk City of McHenry, McHenry County, Illinois (SEAL) The City of AlcHenty is dedicated to providing its citizens, businesses, and visitors with the highest quality of programs and services in a customer -oriented, efficient, and fiscally responsible manner. LA-N�D M ARK DIVIDEND 2141 Rosecrans Ave, Ste, 2100 — El Segundo, CA 9024S (866) 392-4200 - (310) 294-8160 August 31, 2016 Susan Low, Mayor City Of McHenry 333 S Green St Mchenry, IL 60050-5494 RE: Option Agreement — Lease Easement Purchase Landmark Dividend LLC ("Landmark") is pleased to offer the City of McHenry (the "City") the following proposal. Landmark has completed an initial analysis of the lease and associated revenue for 1 lease located on property owned by you (the "Premises") and identified in Exhibit A (the "Lease"). Based on this preliminary analysis, Landmarkwill provi e 380 000.00 (the "Purchase Price") in exchange for a 270 Months easement (the "Easement") to the Premises and assignment of City's interest in the Lease and associated rent revenue. By signing below, City grants Landmark an optiorrto complete the contemplated transaction and purchase from you the landlord interest in the Lease ,(the "Option"). Landmark may exercise the Option granted herein at any time within sixty (60) calendar days of the date of full execution of this letter and receipt of necessary due diligence items (the. "Option Period"). Landmark's right to exercise the Option granted herein is conditioned upon the .expiration or waiver of the thirty (30) day right of first refusal ("ROFR") period as set forth in the Lease (the "ROFR Period"). Further, the transaction contemplated herein shall be conditioned upon the successful negotiation of a mutually acceptable purchase and sale agreement by the parties herein. Notwithstanding anythingto the contrary as setforth herein, City and Landmark agree that the following provisions shall be incorporated in the purchase and sale agreement, City reserves the right, in its sole discretion to enforce paragraphs 7=15 and 21ofthe Lease subject to the following terms and conditions: (1)' City shall provide Landmark .with written notice that it reasonably believes the tenant Is in default under the Lease. Upon receipt of such written notice, Landmark shall have e twenty (20) days to notify. City in writing of its election to enforce the provisions of the Lease.. If Landmark elects to enforce the provisions of the Lease, then it shall use all commercially reasonable efforts in a reasonable timeframe under the circumstances to enforce the Lease to include without limitation, seeking a remedy at law or equity from a court of competent jurisdiction to enforce the provisions of the Lease. (2) If Landmark elects not to enforce the terms of the Lease or fails to notify the City in writing of its election within the foregoing twenty (20) day period, then City may enforce the foregoing Lease provisions. (3) However, notwithstanding anything to the contrary as set forth herein, in the event the tenant's breach or default of the Lease provisions is of an emergency nature, which imminently threatens the health, safety and/or welfare of the City's residents or property or imminently threatens the structural integrity or operation and/or functioning of the City water storage tower, then the City may immediately enforce such provision(s) of the Lease against the tenant; provided however, such breach or event of default thereunder shall also be a violation of any applicable statute, code, ordinance or resolution under federal, state, local law or agency -issued permit to the City ; thereafter, the City shall notify Landmark of its enforcement action as soon as practicable. (4) Any remedy or recovery for the City must be limited to compensatory damages and/or specific performance. Under no circumstances shall the City be permitted to terminate the Lease or the Easement or collect any rent or evict or dispossess the tenant from the Easement or leasehold estate; except, that the City may additionally seek from a court of competent jurisdiction the right to terminate the Lease or the Easement or evict or dispossess the tenant from the Easement or leasehold estate under the two following circumstances:1) where the default or breach threatens the health, safety and/or welfare of the City's residents or property; or 2) where the breach threatens the structural integrity or operation and/or functioning of the City's water storage tower. Other than these two exceptions, the City shall not be permitted to terminate the lease or the easement or collect any rent or evict or dispossess the tenant from the easement or leasehold estate. (5) Landmark agrees to reasonably cooperate with the City by providing any additional documentation within its reasonable possession or control to enable the City to enforce the foregoing provisions under the Lease. Further, Landmark represents to City that it has been Landmark's experience that it takes tenants approximately two (2) months' time after closing to recognize Landmark as the new rent payee. Accordingly, Landmark and City agree that at. closing, the equivalent amount of two months' rent from the tenant shall be held in escrow with -the title company. In the event that the City receives any rent checks form the tenant for the two months' time immediately following the closing, the City may keep such rent checks, but Landmark shall be permitted to draw such amounts form the escrow. Also, in the event the tenant immediately recognizes Landmark as the new payee after closing, then Landmark shall instruct the title company to release -such amounts from the escrow. After two months'time, in the event that the City receives any rent checks from the tenant beyond and above the two months after closing, the City agrees to remit and end se such rent checks to Landmark. City acknowledges that a $100 non-refundable cash deposit by Landmark and Landmark's commitment to expend time; effort and expense to evaluate this transaction are good, valuable and sufficient consideration forthe Option granted herein. During the Option Period, City agrees to cooperate fully with Landmark -in connection with Its evaluation of this transaction. Further, during the Option Period, City shall not,. directly or indirectly, (a) offer the Lease or the Premises for sale or assignment to any other person; Jb)' negotiate, solicit or entertain any offers to sell or assign any interest in the Lease or Premises to any*other person; or (c) modify, amend, supplement, extend, renew, terminate or cancel the Lease. This letter is intended as and shall be a legally binding commitment, in the event of a breach of this letter agreement, Landmark shall, in addition to its other rights and remedies, be entitled to compensation for its time, effort and expense to evaluate this transaction and, in any action to enforce this letter agreement, to recovery of its reasonable attorneys' fees. City's signature below will indicate your agreement to the foregoing and will provide authorization for Landmark to proceed with the evaluation of this transaction and completion of its due diligence including but not limited to verification with the tenants of the accuracy of the due diligence items. We loolcforward to working with you on this transaction. Should you have any questions, please feel free to contact me at any time. t AGREED TO AND ACCEPTED AS INDICATED BELOW AS OF THE �. DAY OF ��:.. 1l w = C� �( LANDMARI<DIVIDEND LLC Daniel R. Parsons _ 2016009023 '87 � ,.� rv:zr:av vi v0 ,1. to Legal Deparhnent City Of McHenry Susan Cow, Mayor Exhibit A Tenant/ Term Current Rent Escalation Escalation Date Of Next Carrier Purchased Rent Frequency Rate Frequency Escalation AT&T Mobility 270 $3,240.38 Monthly 3.00 % Annually March01, (a/Ic/a) New Months 2017 Cingular tP T, fps N D NI A Pt l{ 2141 Rosecrans Ave, Ste. 2100—EI Segundo, CA 90245 (866) 392-4200 - (310) 294-8160 August 31, 2016 Susan Low, Mayor City of McHenry ° 333 S Green St Mchenry, IL 60050-5494 RE: Option Agreement— Lease Easement Purchase Landmark Dividend LLC ("Landmark") is pleased to offer the City of McHenry (the "City") the following proposal. Landmark has completed an initial analysis of the lease and associated revenue for 1 lease located on property owned by you (the "Premises") and..identifled in Exhibit A (the "Lease"). Based on this preliminary analysis, Landmark will provide, 144;000.00 (the "Purchase Price") in exchange for a 148 Months easement (the "Easement") to the Premises and assignment of City's interest in the Lease and associated rent revenue. By signing below, Citygrants Landmark an option:to completethe contemplated transaction and purchase from you the landlord interest in the Lease (the "Option"). Landmark may exercise the Option granted herein at any time within sixty (60) calendar days of the date of full execution of this letter and receipt of necessary due diligence items (the "Option Period"). Landmarles right to exercise the Option granted herein is conditioned upon receipt of tenant's (the "Tenant") consent in writing to the contemplated transaction (the "Consent"). Further, the transaction contemplated herein shall be conditioned upon the successful negotiation of a mutually acceptable purchase and sale agreement by the parties herein. Notwithstanding anything to the contrary asset forth herein, City and Landmark agree that the following provisions shall be incorporated in the purchase and sale agreement, City reserves the right, In its sole discretion.to enforce paragraphs 6 —10, 13 and 17-18 of the Lease subject to the following terms and: conditions: (1) City shall provide Landmark with written notice that it reasonably believes the tenant is in default under the Lease. Upon receipt of such written notice, Landmark shall have twenty (20) days to Notify City in writing of its election to enforce the provisions of the Lease. If Landmark elects to enforce the provisions of the Lease, then it shall use all commercially reasonable efforts in a reasonable timeframe under the circumstances to enforce the Lease to include without limitation, seeking a remedy at law or equity from a court of competent jurisdiction to enforce the provisions of the Lease, (2) If Landmark elects not to enforce the terms of the Lease or fails to notify the City in writing of its election within the foregoing twenty (20) day period, then City may enforce the foregoing Lease provisions. (3) However, notwithstanding anything to the contrary as set forth herein, in the event the tenant's breach or default of the Lease provisions is of an emergency nature, which imminently threatens the health, safety and/or welfare of the City's residents or property or imminently threatens the structural integrity or operation and/or functioning of the City water storage tower, then the City may immediately enforce such provision(s) of the Lease against the tenant; provided however, such breach or event of default thereunder shall also be a violation of any applicable statute, code, ordinance or resolution underfederal, state, local law or agency -issued permit to the City ; thereafter, the City shall notify Landmark of its enforcement action as soon as practicable. (4) Any remedy or recovery for the City must be limited to compensatory damages and/or specific performance. Under no circumstances shall the City be permitted to terminate the Lease or the Easement or collect any rent or evict or dispossess the tenant from the Easement or leasehold estate; except, that the City may additionally seek from a court of competent jurisdiction the right to terminate the Lease or the Easement or evict or dispossess the tenant from the Easement or leasehold estate�under the two following circumstances:1) where the default or breach threatens the health, safety and/or welfare of the City's residents or property; or 2) where the breach threatens the'structural integrity or operation and/or functioning of the City's water storage tower. Other than these two exceptions, the City shall not be permitted to terminate the lease or the easement or collect any rent or evict or dispossess the tenant from the easement or leasehold estate. (5) Landmark agrees to reasonably cooperate with the City by providing any additional documentation within its reasonable possession or control to enable the City to enforce the foregoing provisions under the Lease. Further, Landmark represents to. City that it has been Landmark's experience that it takes tenants approximately two (2) months' time after closing to recognize Landmark as the new rent payee. Accordingly, Landmark and City agree that at closing, the equivalent amount of two months' rent from the tenant shall be held in escrow with the title company. In the event that the City receives any rent checks form the tenant for the two.months' time Immediately following the closing, the City may keep such rent checks, but Landmark sfiall: be permitted to draw such amounts form the escrow. Also, in the event the tenant immediately recognizes Landmark as the new payee after closing, then Landmark shall instruct the title company to release such amounts from the escrow. After two months'time, in the event that the City receives any rent:checks from the tenant beyond and above the two months after closing, the City agrees to remit -and endorse such rent checks to Landmark. City acknowledges. that a $100 non-refundable cash deposit by Landmark and Landmark's commitment to expend tiTe;'effort and expense. to evaluate this transaction are good, valuable and sufficient considerationfortheOption granted herein. Duringthe Option Period, City agrees to cooperate fully with Landmark in' connection with its evaluation of this transaction. Further, during the Option Period, you shall not, directly or indirectly, (a).offer the Lease or the Premises for sale or assignment to any other person; (b) negotiate, solicit or entertain any offers to sell or assign any interest in the Lease or Premises to any other person; or (c) modify, amend, supplement, extend, renew, terminate or cancel the Lease(s). This letter is intended as and shall be a legally binding commitment. In the event of a breach of this letter agreement, Landmark shall, in addition to its other rights and remedies, be entitled to compensation for its time, effort and expense to evaluate this transaction and, In any action to enforce this letter agreement, to recovery of its reasonable attorneys' fees. City's signature below will Indicate your agreement to the foregoing and will provide authorization for Landmark to proceed with the evaluation of this transaction and completion of its due diligence including but not limited to verification with the tenants of the accuracy of the due diligence items. We loolcforward to worldngwith you on this transaction. Should you have any questions, please feel free to contact me at any time. AGREED TO AND ACCEPTED AS INDICATED BELOW AS OF THE DAY OF L r. LANDMARI(DIVIDEND LLC Daniel R. Parsons 2016909.23 �n:�l;i� n7'00, City of McHenry Susan Low;'Mayor Exhibit A Tenant/ Term Current Rent Escalation Escalation pate of Carrier Purchased Rent Frequency Rate Frequency Next Escalation T-Mobile 148 $22,770.52 Annually 2.50 % Annually March 01, Months 2018