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HomeMy WebLinkAbout2.60 Amendment 1 2.60 Cell Site No.WA718 Cell Site Name:WEST PORT ANGELES Fixed Asset No. 10030925 Market:PNW Address: 1303 West 8th Street,Port Angeles,WA 98363 FIRST AMENDMENT TO ANTENNA LEASE AGREEMENT THIS FIRST AMENDMENT TO ANTENNA LEASE AGREEMENT("Amendment"), dated as of the latter of the signature dates below (the"Effective Date"), is by and between City of Port Angeles, having a mailing address of 321 East 5"' Street, Port Angeles, WA 98362 (hereinafter referred to as "City"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company, successor in interest to Pacific Bell Wireless, Northwest LLC, having a mailing address of 575 Morosgo Drive NE, Atlanta,GA 30324(hereinafter referred to as"Lessee"). WHEREAS, City and Lessee (or its respective predecessor-in-interest) entered into an Antenna Lease Agreement dated April 2, 2003, whereby City leased to Lessee a certain Parcel Plan, therein described, that is a portion of the property located at 1303 West 8th Street, Port Angeles, WA 98363 (formerly misstated as 613 South G Street)(hereinafter,collectively referred to as the"Lease"); and WHEREAS, the Term of the Lease will expire on May 18, 2018 and the parties mutually desire to renew the Lease, memorialize such renewal period and modify the Lease in certain other respects, all on the terms and conditions contained herein;and WHEREAS,City and Lessee desire to amend the Lease to extend the Term of the Lease;and WHEREAS, City and Lessee desire to amend the Lease to adjust the rent in conjunction with the modifications to the Lease contained herein; and WHEREAS,City and Lessee desire to amend the Lease to modify the notice section thereof; and WHEREAS, City and Lessee desire to amend the Lease to permit Lessee to add, modify and/or replace equipment 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; and WHEREAS, City and Lessee desire to amend the Lease to clarify scope of Lessee's permitted use of the Parcel Plan; and WHEREAS,City and Lessee, in their mutual interest,wish to amend the Lease as set forth below accordingly. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Lessee agree that the recitals set forth above are incorporated herein as if set forth in their entirety and further agree as follows: 1. Extension of Term. The Term of the Lease shall be extended to provide that the Lease has a new initial term of five (5) years ("New Initial Term") commencing on May 19, 2018. The Lease will automatically renew, commencing on the expiration of the New Initial Term, for up to five (5) separate consecutive additional periods of five (5) years each (each such five(5) year additional period is hereinafter referred to as an "Additional Extension Term), upon the same terms and conditions of the Lease, as amended herein, unless Lessee notifies City in writing of Lessee's intention not to renew the Lease at least sixty (60) days prior to the expiration of the New Initial Term or the current Additional Amendmentv. Cell Site No.WA718 Cell Site Name:WEST PORT ANGELES Fixed Asset No.10030925 Market:PNW Address: 1303 West 8th Street,Port Angeles,WA 98363 Extension Term. The New Initial Term and the Additional Extension Term are collectively referred to as the Term("Term"). 2. Rent. Commencing on May 19, 2018,the rent payable under the Lease shall be Eighteen Thousand Five Hundred Sixty-Seven and 29/100 Dollars ($18,567.29) payable annually in advance, and shall continue during the Term,subject to adjustment as provided herein. 3. Future Rent Increase. The Lease is amended to provide that commencing on May 19, 2023, the rent shall increase by fifteen percent (15%) over the rent paid during the previous year. Commencing on May 19, 2024, and every year thereafter, the rent shall increase by three (3%) over the rent paid during the previous year. 4. Acknowledgement. City acknowledges that: 1) this Amendment is entered into of the City's free will and volition; 2) City has read and understands this Amendment and the underlying Lease and, prior to execution of this Amendment, was free to consult with counsel of its choosing regarding City's decision to enter into this Amendment and to have counsel review the terms and conditions of this Amendment; 3) City has been advised and is informed that should City not enter into this Amendment, the underlying Lease between City and Lessee, including any termination or non-renewal provision therein,would remain in full force and effect. 5. Notices. Paragraph 11 of the Lease is hereby deleted in its entirety and replaced with the following: "(a) 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 Lessee: New Cingular Wireless PCS,LLC Attn: Network Real Estate Administration Re: Cell Site#: WA718; Cell Site Name: WEST PORT ANGELES (WA) Fixed Asset No: 10030925 575 Morosgo Drive NE Atlanta,GA 30324 With a required copy of the notice sent to either of the addresses above to: New Cingular Wireless PCS, LLC Attn: Legal Department—Network Operations Re: Cell Site#: WA718; Cell Site Name: WEST PORT ANGELES (WA) Fixed Asset No: 10030925 208 S. Akard Street Dallas,Texas,75202-4206 As to City: Amendment v.I Cell Site No.WA718 Cell Site Name:WEST PORT ANGELES Fixed Asset No. 10030925 Market:PNW Address: 1303 West 8th Street,Port Angeles,WA 98363 City of Port Angeles 321 East 5`h Street Port Angeles,WA 98362 (b) In the event of a change in ownership, transfer or sale of the Parcel Plan, within ten(10) days of such transfer, City will send the below documents to Lessee. In the event Lessee does not receive such appropriate documents, Lessee shall not be responsible for any failure to pay the current lessor and reserves the right to hold payments due under the Lease. (i) New deed to Parcel Plan (ii) New W-9 (iii) New Payment Direction Form (iv) Full contact information for new landlord including all phone numbers (v) Bill of Sale or Transfer (vi). Copy of current Tax Bill 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." 6. Emergency 911 Service. In the future, without the payment of additional rent, or any other consideration, and at a location mutually acceptable to City and Lessee,City agrees that Lessee may add, modify and/or replace equipment 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. 7. Expansion of the Parcel Plan. City grants, to the extent practicable and on a space available basis, and upon City's consent, which shall not be unreasonably withheld, conditioned, or delayed, the Lessee the right to enlarge the Parcel Plan or the City shall make space available on the property for Lessee so that Lessee or its authorized sublessees may implement any necessary modifications,supplements,replacements,refurbishments,or expansions to the Antenna Facility or to any equipment related thereto, or for any other reasons, as determined by Lessee in its sole discretion. Should Lessee exercise the right to expand the Parcel Plan,Lessee will pay and City will accept as additional rent under the Lease 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 Parcel Plan. Upon notice to City, a description and/or depiction of the modified Parcel Plan ground will become part of the Lease without any additional action on the part of Lessee and City; however, at the request of Lessee, the parties will execute a Memorandum of Lease in recordable form memorializing the modification of the ground space of City's property,which either party may record at its option. 8. Permitted Use. Lessee, its personnel,invitees,contractors,agents, sublessees,or its authorized sublessees, or assigns may use the Parcel Plan, at no additional cost or expense, for the transmission and reception of any and all communications signals and to modify, supplement, replace, upgrade, expand, , or refurbish the equipment and/or improvements thereon, or relocate the same within the Parcel Plan at any time during the term of the Lease for any reason, or 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. Notwithstanding the foregoing, any addition of antennas shall require City's consent, which shall not be unreasonably withheld, conditioned, or delayed, provided however, Lessee shall have the right to swap like antennas. City shall reasonably cooperate in obtaining governmental and other use permits or approvals necessary or desirable for the Ainendment_v.1 Cell Site No.WA718 Cell Site Name:WEST PORT ANGELES Fixed Asset No.10030925 Market:PNW Address: 1303 West 8th Street,Port Angeles,WA 98363 foregoing permitted use. If City does not comply with the terms of this Section, in addition to any other rights it may have at law, Lessee may terminate the Lease and shall have no further liability to City. If City does not comply with the terms of this Section, Lessee will have the right to exercise any and all rights available to it under law and equity, including the right to cure City's default and to deduct the costs of such cure from any monies due to City from Lessee. 9. 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 the Attachment 1. Either party may record this memorandum at any time, in its absolute discretion. 10. Rental Stream Offer. If at any time after the date of this Amendment, City receives a bona fide written offer from a third party seeking an assignment or transfer of the rent payments associated with the Lease("Rental Stream Offer"), City shall immediately furnish Lessee with a copy of the Rental Stream Offer. Lessee shall have the right within ninety(90)days after it receives such copy 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 Lessee chooses not to exercise this right or fails to provide written notice to City within the ninety (90) day period, City may assign the right to receive rent payments pursuant to the Rental Stream Offer, subject to the terns of the Lease. If City attempts to assign or transfer rent payments without complying with this Section, the assignment or transfer shall be void. Lessee shall not be responsible for any failure to make payments under the Lease and reserves the right to hold payments due under the Lease until City complies with this Section. 11. Charges. All charges payable under the Lease such as utilities and taxes(unless they are billed directly to Lessee) shall be billed by City 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 City, and shall not be payable by Lessee. The foregoing shall not apply to rent which is due and payable without a requirement that it be billed by City. The provisions of this subsection shall survive the termination or expiration of the Lease. 12. Other Terms and Conditions Remain. In the event of any inconsistencies between the Lease and this Amendment, the terms of this Amendment shall control. Except as expressly set forth in this Amendment, the Lease otherwise is unmodified and remains in full force and effect. Each reference in the Lease to itself shall be deemed also to refer to this Amendment. 13. Capitalized Terms. All capitalized terms used but not defined herein shall have the same meanings as defined in the Lease. [SIGNATURES APPEAR ON THE NEXT PAGE] Amendment_v.1 Cell Site No.WA718 Cell Site Name:WEST PORT ANGELES Fixed Asset No.10030925 Market:PNW Address: 1303 West 8th Street,Port Angeles,WA 98363 IN WITNESS WHEREOF, the parties have caused their properly authorized representatives to execute this Amendment on the dates set forth below. CITY: APPROVED AS TO FORM: City of Port Angeles By: Name: William Bloor,City Attorney Title: pr Date: ATTEST: K ►t ( _1, � ennife Veneklasen,City Clerk LESSEE: New Cingular Wireless PCS,LLC, A Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: Name: tJ v�1c Title: !� yg-� 2—. Date: \— 1\— ��-e [ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE] Amendment v.l Cell Site No.WA718 Cell Site Name:WEST PORT ANGELES Fixed Asset No.10030925 Market:PNW Address: 1303 West 8th Street,Port Angeles,WA 98363 CITY ACKNOWLEDGMENT REPRESENTATIVE CAPACITY: STATE OF ) SS. COUNTY OF ) This instrument was acknowledged before me on �� �� 2015 by as of ��(aQ1es . w t'4s�0TARY9� 2ss �1G ( ture f Nota 1'N-1\`•-;NJ4 � ``. (Legibly Print or Stamp Name of Notary) Notary OF wPs�� �``` My Commblic in and for ission expires the State of d _ l� Amendment_v.1 Cell Site No.WA718 Cell Site Name:WEST PORT ANGELES Fixed Asset No.10030925 Market:PNW Address: 1303 West 8th Street,Port Angeles,WA 98363 LESSEE ACKNOWLEDGMENT STATE OF OREGON SS. COUNTY OF This instrument was acknowledged before me on A by as � of v) Notary Seal OFFICIA4.STAMP RHONDA YVETTE OSSA TI NOTARY PUBLIC-OREGON (Signature of Notary) #0 COMMISSION NO.932945 v \ "I-�C, r, MY COMMISSION EXPIRES OCTOBER 07,201t (Legibly Print or Stamp Name of Notary) Notary Public in and for the State of Oregon My Commission expires: Ainendinentv.I Return to: Richard J.Busch Busch Law Firm PLLC 25025 SE Klahanie Blvd. F203 Issaquah,WA 98029 t ATTACHMENT I Grantor: City of Port Angeles Grantee: New Cingular Wireless PCS,LLC,a elalamrt Itabljt} company Legal Description: Lots 1—20,Block 153 (abbrevi lega Official legal description attache as exhibit 1 Assessor's Tax Parcel ID#: Reference Number of Prior Recorded Documents True Consideration Paid Does not a ly Tax 4ailkvAddress: Does not apply Cell Site#: WA718 Tixed Asset#: 10030925 Cell Site Name: WEST RT ANGELE State: Was i on County: Clallam + ORANDUM OF LEASE This 1Dl�morandvin o -\Lease ' e tered into on this day of 2015, by and betweCity ort�geles, having a mailing address at 321 East 5"' Street, Port Angeles, WA 98362 (hereina re erred to as " ity'' and New Lingular Wireless PCS, LLC, a Delaware limited liability company, ha ailing ad ress of 575 Morosgo Drive NE,Atlanta, GA 30324(hereinafter referred to as "Lessee"). 1. City and Lessee (or its respective predecessor-in-interest) entered into a certain Antenna Lease Agreement on April 2, 2003, as amended by that certain First Amendment to Antenna Lease Agreement dated , 2015 (hereinafter, collectively the "Lease") for the purpose of installing, operating and maintaining a communications facility and other improvements at City's real property located in the City of Port Angeles, County of Clallam, commonly known as 1303 West 8th Street, Port Angeles, WA 98363. All of the foregoing is set forth in the Lease. 2. The Lease commenced and has been in effect since May 19, 2003 and the parties agree to continue the Lease with a new initial lease term of five (5) years ("New Initial Term") commencing on May 19, 2018 with five (5) successive five (5) year Additional Extension Terms, unless Lessee notifies City in writing of Lessee's intention not to renew the Lease at least sixty(60)days prior to the expiration of the then current Additional Extension Term. 3. The portion of the land being leased to Lessee (the "Parcel Plan") isExhibit 1 annexed hereto. d � 4. This Memorandum of Lease is not intended to amend o ,oc3i ,and a t b d or construed as amending or modifying, any of the terms, ceadd-ion tr pr ns th ease, all of which are hereby ratified and affirmed. In the Vent �c;on ween the provisions of this Memorandum of Lease and the prove erns 1io Lea ,< e provisions of the Lease shall control. The Lease shall be binding ue 'bp of the parties and their respective heirs, successors,and assigns,subje tai th iovisi s the Lease. IN WITNESS WHEREOF, the parties have executed this, orand 4 se as of the day and year first above written. CITY: APP I Ell S TO FORM: City of Port Angeles By: Name: am Bloor,City Attorney Title: Mayor Date: ATTEST: \ Jennifer Ve klasen ity erk LESSEE: \ New Cingular Wirele PCS, LC, A Delaware limited liabi i company By: AT&T Mobility Corporation Its: Manager By: Name: Title: Date: CITY ACKNOWLEDGMENT REPRESENTATIVE CAPACITY: STATE OF ) ` SS. ` COUNTY OF ) This instrument was acknowledged before me on 2 ` as f Notary Seal (Sig ture of Notary (Legibly Pry o tamp Name of Notary) Notary Public in and for the State of Commission expires: Ov LESSEE ACKNOWLEDGMENT :« STATE OF OREGON ) ' SS. COUNTY OF ) This instrument was acknowledged before me on 20 as ctf \ j Notary Seal (Sign ure of Notary (Legibly Pri o tamp Name of Notary) otary Public in and for the State of Oregon \ Commission expires: Exhibit 1 to Memorandum of Lease Parcel Plan The Parcel Plan, which consists of space on a monopole for Lessee's Antenna Facility, is located on a portion of the property described and/or depicted as follows: PARCEL A: LOTS Z THROUGH 20, BLOCK 1.53, TOWNSITE OF PORT ANGELES, AS PER PLAT THEREOF RECORDED IN VOLUME 1 OF PLATS, PAGE 27', RECORDS OF CLALL.AM COUNTY, WASHINCTON. BLACI(D L., AL b , LEASE AMENDMENT TRANSMITTAL FORM TO: QTY OF PORT ANGELES FROM: BLACK DOT WIRELESS SUBJECT: FIRST AMENDMENT TO ANTENNA LEASE AGREEMENT DATE: AUGUST 25,2016 CC: AT8 f-NVS-43155.1 Per your negotiations with Saad Khalid, Black Dot NXrireless, please find attached one (1) fully executed First Amendment to Antenna Lease Agreement original for your records.