HomeMy WebLinkAboutRESOLUTION - 33-15 - 6/16/2015 - GROUND LEASE AGREEMENTRESOLUTION NO. 33-15
A RESOLUTION AMENDING RESOLUTION NO. 36-05 AND AUTHORIZING THE
MAYOR AND VILLAGE CLERK TO EXECUTE A FIRST AMENDMENT TO THE
GROUND LEASE AGREEMENT AND A MEMORANDUM OF AGREEMENT
BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND NCWPCS MPL 32 —
YEAR SITES TOWER HOLDINGS LLC FOR THE PROPERTY LOCATED AT
600 LANDMEIER ROAD
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the
Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois, as follows:
Section l: That the Mayor be and is hereby authorized to sign the attached documents
marked:
FIRST AMENDMENT TO GROUND LEASE AGREEMENT
and
MEMORANDUM OF FIRST AMENDMENT TO GROUND LEASE AGREEMENT
a copy of which is attached hereto and made a part hereof as if fully set forth and the Village
Clerk is authorized to attest said document upon the signature of the Mayor.
Section 2: That this Resolution shall be in full force and effect from and after its passage
and approval according to law.
Section 3: That this Resolution shall be in full force and effect from and after its passage
and approval according to law.
VOTE: AYES: 6 NAYS: 0 ABSENT: 0
PASSED this 16`h day of June 2015.
APPROVED this 16'h day of June 2015.
APPROVED:
Mayor Craig B. Johnson
Village of Elk Grove Village
ATTEST:
Judith M. Keegan, Village Clerk
Fi;s1AmcndNcw("int- ihu'S0fq.undmcia
FIRST AMENDMENT_TO GROUND LEASE AGREEMENT
(BU 842162)
THIS FIRST AMENDMENT FO GROUND LEASE AGREEMENT ('First
Amendment") is made effective this ',^ day of _ , 2015, by and between
VILLAGE OF ELK GROVE VI LLAGE"'"Land lord"), and NCWPCS MPL 32 - YEAR SITES
TOWER HOLDINGS LLC, a Delaware limited liability company (`Tenant"), by and through
CCATT LLC, a Delaware limited liability company, its Attorney -in -Fact.
WHEREAS, Landlord and New Cingular Wireless PCS, LLC (`New Cingular") entered
into a Ground Lease Agreement dated July 28, 2005 (as amended and assigned, the "Lease"),
whereby Landlord leased to New Cingular a portion of land being described as a 1,200 square
feet portion of that property (said leased portion, together with those certain access, utility and/or
maintenance easements and/or rights of way granted in the Lease being the "Premises") located
at 600 Landmeier Road (formerly identified as 666 Landmeier Road) (Tax Parcel #08-27-100-
042-0000), Elk Grove Village, Cook County, State of Illinois, and being further described in
Document Number 18088024 in the Cook County Recorder's Office (`Recorder's Office"); and
WHEREAS, Tenant is successor in interest to New Cingular, and
WHEREAS, the Lease has an original term, including all Extended Terms (as defined in
the Lease), that will expire on November 16, 2030 (`Original Term"), and Landlord and Tenant
now desire to amend the terms of the Lease to provide for additional Extended Terms beyond the
Original Term, and to make other changes.
NOW THEREFORE, in exchange for the mutual promises contained herein, Landlord
and Tenant agree to amend the Lease as follows:
1. Any capitalized terms not defined herein shall have the meanings ascribed to them
in the Lease. The recitals in this First Amendment are incorporated herein by this reference.
2. Section 1.9 of the Lease is amended by replacing "four (4)" with "nine (9)",
thereby adding five (5) additional five (5) -year Extended Terms to the Lease beyond the Original
Tenn, and extending its total tern to November 16, 2055, unless sooner terminated as provided
in the Lease.
3. Section 1.16 of the Lease is amended by deleting Tenant's notice address and
inserting the following:
Tenant's Address
NCWPCS MPL 32 - Year Sites Tower Holdings LLC
Legal Department
Attn: Network Legal
208 S. Akard Street
Dallas, TX 75202-4206
Site Name: Lively and Landmeier
BU: 842162 - 1 -
Pixed Asset No. 10061825
PPAB 28127961,1
With a required copy to:
CCATT LLC
Attn: Legal Dept.
2000 Corporate Drive
Canonsburg, PA 15317
4. The Lease is amended by adding a new Section 27 to the end thereto:
27: Right of First Refusal
If Landlord receives an offer from any person or entity that owns towers or other
wireless telecommunications facilities (or is in the business of acquiring
Landlord's interest in this Lease) to purchase fee title, an easement, a lease, a
license, or any other interest in the Premises, or Landlord's interest in this Lease,
or an option for any of the foregoing, Landlord shall provide written notice to
Tenant of said offer, and Tenant shall have a right of first refusal to acquire such
interest on the same terms and conditions in the offer, excluding any terms or
conditions which are (i) not imposed in good faith or (ii) directly or indirectly
designed to defeat or undermine Tenant's possessory or economic interest in the
Premises. If Landlord's notice covers portions of Landlord's parent parcel beyond
the Premises, Tenant may elect to acquire an interest in only the Premises, and the
consideration shall be pro -rated on an acreage basis. Landlord's notice shall
include the prospective buyer's name, the purchase price and/or other
consideration being offered, the other terms and conditions of the offer, the due
diligence period, the proposed closing date and, if a portion of Landlord's parent
parcel is to be sold, leased or otherwise conveyed, a description of said portion. If
the Landlord's notice shall provide for a due diligence period of less than
sixty (60) days, then the due diligence period shall be extended to be sixty (60)
days from exercise of the right of first refusal and closing shall occur no earlier
than fifteen days thereafter. If Tenant does not exercise its right of first refusal by
written notice to Landlord given within thirty (30) days, Landlord may convey the
property as described in the Landlord's notice. If Tenant declines to exercise its
right of first refusal, then this Lease shall continue in full force and effect and
Tenant's right of first refusal shall survive any such conveyance
5. As additional consideration for amending the Lease in accordance with this First
Amendment, Tenant agrees to pay to Landlord $15,000.00 for executing and delivering this First
Amendment to Tenant within thirty (30) days of receipt of the final executable First Amendment
(the "Expedite Fee"). Landlord understands that time is of the essence, and if this First
Amendment is not signed by Landlord and delivered by Landlord to Tenant within the specified
time period, Landlord forfeits the Expedite Fee. The Expedite Fee is a one-time payment due and
payable within thirty (30) days of the full execution of this First Amendment subject to the terms
hereof.
6. If requested by Tenant, Landlord will execute, at Tenant's sole cost and expense,
all documents required by any governmental authority in connection with any development of, or
Site Name: Lively and Landmeier
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construction on, the Premises, including documents necessary to petition the appropriate public
bodies for certificates, permits, licenses and other approvals deemed necessary by Tenant in
Tenant's absolute discretion to utilize the Premises for the purpose of constructing, maintaining
and operating Coin nLin ications facilities, including without limitation, tower structures, antenna
support structures, cabinets, meter boards, buildings, antennas, cables, equipment and uses
incidental thereto. Landlord agrees to be named applicant if requested by Tenant. In furtherance
of the foregoing, Landlord hereby appoints Tenant as Landlord's attorney-in-fact to execute all
land use applications, permits, licenses and other approvals on Landlord's behalf, provided that
Landlord is given notice of all documents which are being executed prior to their execution.
7. Representations, Warranties and Covenants of Landlord. Landlord represents,
warrants and covenants to Tenant as follows:
(a) Landlord is duly authorized to and has the full power and authority to enter into
this First Amendment and to perform all of Landlord's obligations under the Lease as amended
hereby.
(b) Except as expressly identified in this First Amendment, Landlord owns the
Premises free and clear of any mortgage, deed of trust, or other lien secured by any legal or
beneficial interest in the Premises, or any right of any individual, entity or governmental
authority arising under an option, right of first refusal, lease, license, easement or other
instrument other than any rights of Tenant arising under the Lease as amended hereby and the
rights of utility providers under recorded easements.
(c) Upon Tenant's request, Landlord shall discharge and cause to be released (or, if
approved by Tenant, subordinated to Tenant's rights under the Lease as amended hereby) any
mortgage, deed of trust, lien or other encumbrance that may now or hereafter exist against the
Premises.
(d) Upon Tenant's request, Landlord shall cure any defect in Landlord's title to the
Premises which in the reasonable opinion of Tenant has or may have an adverse effect on
Tenant's use or possession of the Premises.
(e) Tenant is not currently in default under the Lease, and to Landlord's knowledge,
no event or condition has occurred or presently exists which, with notice or the passage of time
or both, would constitute a default by Tenant under the Lease.
(f) Landlord agrees to execute and deliver such further documents and provide such
further assurances as may be requested by Tenant to effect any release or cure referred to in this
paragraph, carry out and evidence the full intent and purpose of the parties under the Lease as
amended hereby, and ensure Tenant's continuous and uninterrupted use, possession and quiet
enjoyment of the Premises under the Lease as amended hereby.
S. IRS Form W-9. Landlord agrees to provide Tenant with a completed IRS Form
W-9, or its equivalent, upon execution of this First Amendment and at such other times as may
be reasonably requested by Tenant. In the event the Premises is transferred, the succeeding
Landlord shall have a duty at the time of such transfer to provide Tenant with a completed IRS
Site Name: Lively and Landmeier
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Form W-9, or its equivalent, and other related paper work to effect a transfer in rent to the new
Landlord. Landlord's failure to provide the IRS Form W-9 within thirty (30) days after Tenant's
request shall be considered a default and Tenant may take any reasonable action necessary to
comply with IRS regulations including, but not limited to, withholding applicable taxes from rent
payments.
9. In all other respects, the remainder of the Lease shall remain in full force and
effect. Any portion of the Lease that is inconsistent with this First Amendment is hereby
amended to be consistent with this First Amendment. This First Amendment supersedes that
certain Letter Agreement by and between Landlord and Tenant dated April 16, 2015, and in case
of any conflict or inconsistency between the terms and conditions contained in the Letter
Agreement and the terms and conditions contained in this First Amendment, the terms and
conditions in this First Amendment shall control. This instrument may be executed in any
number of counterparts, each of which shall be deemed an original and which together shall
constitute one and the same instrument.
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Site Name: Lively and Landmeier
BU: 842162 -4-
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Fixed Asset 10061825
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MEMORANDUM OF FIRST
AMENDMENT TO GROUND LEASE AGREEMENT
This document was prepared out of State by:
Brandon G. Bordeaux, Esq.
Parker Poe Adams & Bernstein LLP
P.O. Box 389
Raleigh, NC 27602
Return to:
Crown Castle
1220 Augusta, Suite 500
Houston, Texas 77057
Tax Parcel #: 08-27-100-042-0000
MEMORANDUM OF FIRST AMENDMENT TO GROUND LEASE AGREEMENT
THIS MEMORANDUM OF FIRST AMENDMENT TO GROUND LEASE
AGREEMENT ("Amended Memorandum") is made effective this /6 day of
Tune , 2015, by and between VILLAGE OF ELK GROVE VILLAGE, an Illinois
municipal corporation ("Landlord"), with a mailing address of 901 Wellington Avenue, Elk
Grove Village, Illinois 60007, and NCWPCS MPL 32 - YEAR SITES TOWER HOLDINGS
LLC, a Delaware limited liability company ("Tenant") with a mailing address of Legal
Department, Attn: Network Legal, 208 S. Akard Street, Dallas, TX 75202-4206, by and through
CCATT LLC, a Delaware limited liability company, its Attorney -in -Fact, with a mailing address
ofc/o Crown Castle USA Inc. 2000 Corporate Drive, Canonsburg, Pennsylvania 15317-8564.
WHEREAS, Landlord and New Cingular Wireless PCS, LLC ("New Cingular") entered
into a Ground Lease Agreement dated July 28, 2005 (as amended and assigned, the "Lease"),
whereby Landlord leased to New Cingular a portion of land being described as a 1,200 square
feet portion of that property (said leased portion, together with those certain access, utility and/or
maintenance easements and/or rights of way granted in the Lease being the "Premises") located
at 600 Landmeier Road (formerly identified as 666 Landmeier Road) (Tax Parcel #08-27-100-
042-0000), Elk Grove Village, Cook County, State of Illinois, and being further described in
Document Number 18088024 in the Cook County Recorder's Office ("Recorder's Office"); and
Site Name: Lively and Landmeier
BU: 842162 - I Fixed Asset No. 10061825
PPAB 2812796v I
WHEREAS, Tenant is successor in interest to New Cingular; and
WHEREAS, the Lease has an original term, including all Extended Terms (as defined in
the Lease), that will expire on November 16, 2030 ("Original Term"), and Landlord and Tenant
now desire to amend the terns of the Lease to provide for additional Extended Terms beyond the
Original Term, and to make other changes; and
WHEREAS, Landlord and Tenant made and entered into a First Amendment to Ground
Lease Agreement of even date herewith ("First Amendment") and pursuant to the terms of, and
for that consideration recited in, the First Amendment, the parties wish to hereby amend certain
provisions ofthe Lease, and provide this Amended Memorandum as notice thereof, as follows:
1. Landlord does hereby lease and grant unto Tenant, its successors and assigns, the
Premises for five (5) additional five (5) year Extended Tennis beyond the Original Term, such
that the Original Term and all Extended Terms of the Lease may last for a term of fifty (50)
years, expiring on November 16, 2055, unless sooner terminated as provided in the Lease.
2. The Premises is that 1,200 square feet portion, together with those easements and
rights of way granted in the Agreement, of property located at 600 Landmeier Road (formerly
identified as 666 Landmeier Road), Elk Grove Village, Cook County, State of Illinois. The
parent parcel on which the Premises is located is further described in Document Number
18088024 in the Recorder's Office and has Tax Parcel #08-27-100-042-0000.
3. If Landlord receives an offer from any person or entity that owns towers or other
wireless telecommunications facilities (or is in the business of acquiring Landlord's interest in
the Lease) to purchase fee title, an easement, a lease, a license, or any other interest in the
Premises, or Landlord's interest in the Lease, or an option for any of the foregoing, Landlord
shall provide written notice to Tenant of said offer, and Tenant shall have a right of first refusal
to acquire such interest on the same terms and conditions in the offer, excluding any terms or
conditions which are (i) not imposed in good faith or (ii) directly or indirectly designed to defeat
or undermine Tenant's possessory or economic interest in the Premises. The details of the right
of first refusal granted to Tenant in the First Amendment are provided in the First Amendment.
5. If requested by Tenant, Landlord will execute, at Tenant's sole cost and expense,
all documents required by any governmental authority in connection with any development of, or
construction on, the Premises, including documents necessary to petition the appropriate public
bodies for certificates, permits, licenses and other approvals deemed necessary by Tenant in
Tenant's absolute discretion to utilize the Premises for the purpose of constructing, maintaining
and operating communications facilities, including without limitation, tower structures, antenna
support structures, cabinets, meter boards, buildings, antennas, cables, equipment and uses
incidental thereto. Landlord agrees to be named applicant if requested by Tenant. In furtherance
of the foregoing, Landlord hereby appoints Tenant as Landlord's attorney-in-fact to execute all
land use applications, permits, licenses and other approvals on Landlord's behalf, provided that
Landlord is given notice of all documents which are being executed prior to execution
6. This Amended Memorandum contains only selected provisions of the First
Amendment, and reference is made to the full text of the Lease and the First Amendment for
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their full terms and conditions, which are incorporated herein by this reference. Except as
otherwise provided in the First Amendment and this Amended Memorandum, the terms and
conditions of the Lease remain in full force and effect. This instrument may be executed in any
number of counterparts, each of which shall be deemed an original and which together shall
constitute one and the same instrument.
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Site Name: Lively and Landmeier
BU: 842162 -3-
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IN WITNESS WHEREOF, Landlord and Tenant have signed this instrument under seal,
and have caused this Amended Memorandum to be duly executed on the day and year first
written above.
LANDLORD:
Village of Elk Grove Village,
an Illinois municipal corporation
By:
Print Name:
Title:
STATE OF
) ss.
COUNTY of
L)
On this, the day of , 2015, before me
Notary Public, the undersigned officer, personally appeared
who acknowledged him/herself to be the
of the Village of Elk Grove Village, an Illinois
municipal corporation, and that he/she being authorized to do so, executed the foregoing
Memorandum of First Amendment to Ground Lease Agreement for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public, State of County of
My Commission expires:
[SEAL REQUIRED]
Site Name: Lively and Landmeier
BU: 842162 -4-
Fixed
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Fixed Asset 10061825
PPAB 2812796v I
IN WITNESS WHEREOF, Landlord and Tenant have signed this instrument under seal,
and have caused this Amended Memorandum to be duly executed on the day and year first
written above.
STATE OF
) ss.
COUNTY of
TENANT:
NCWPCS MPL 32 - Year Sites Tower
Holdings LLC, a Delaware limited liability
company
By: CCATT LLC,
a Delaware limited liability company,
its Attorney -in -Fact
By:
Print Name:
Title:
EAL)
On this, the day of 2015, before me
Notary Public, the undersigned officer, personally appeared
who acknowledged him/herself to be the
of the CCATT LLC, a Delaware limited liability
company, as Attorney -in -Fact for NCWPCS MPL 35 - Year Sites Tower Holdings LLC, a
Delaware limited liability company, and that he/she being authorized to do so, executed the
foregoing Memorandum of First Amendment to Ground Lease Agreement for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public, State of , County of
My Commission expires:
[SEAL REQUIRED]
Site Name: Lively and Landmeier
BU: 842162 -5 -
Fixed Asset 10061825
PPAB 2812796x1