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Home My WebLink AboutT-Mobile Second Amendment Site Agreement 3/31/2016E SECOND AMENDMENT TO SITE AGREEMENT FOR LAND (BU 825280) THIS SECOND AMENDMENT TO SITE AGREEMENT FOR LAND ("Second Amendment") is made effective this _31_ day of ►m ph , 2016, by and between CITY OF WINTER SPRINGS, a Florida incorporated municipality ("Owner"), and T -MOBILE USA TOWER LLC, a Delaware limited liability company ("Tenant"), by and through CCTMO LLC, a Delaware limited liability company, its Attorney -in -Fact. WHEREAS, Owner and VoiceStream Tampa/Orlando, Inc., successor by name change to APT Tampa/Orlando, Inc. ("VoiceStream"), entered into a Site Agreement for Land dated December 12, 1997 (as amended and assigned, the "Agreement"), whereby Owner leased to VoiceStream a portion of land being described as a 2,500 square feet portion of that property (said leased portion being the "Premises") located at 1126 East S.R. 434 (Tax Parcel #26-20-30- 5AR-01300-0270), Winter Springs, Seminole County, State of Florida, and being further described in Book 1557, Page 566 in the Seminole County Clerk's Office ("Clerk's Office"), together with those certain access, utility and/or maintenance easements and/or rights of way granted in the Agreement. Notice of the Agreement is provided by, and the Premises is described in that certain Memorandum of Site Agreement for Land/Lease ("Memorandum"), recorded on May 5, 1998, in Book 3418, Page 409 in the Clerk's Office; and WHEREAS, Owner and VoiceStream entered into an Amendment No. 1 to Site Agreement for Land dated March 12, 2001 ("First Amendment"), which increased the size of the Premises to 3,500 square feet; and WHEREAS, Tenant is the successor in interest to VoiceStream; and WHEREAS, the Agreement has an original term, including all Renewal Terms (as defined in the Agreement), that will expire on December 31, 2022 ("Original Term"), and Owner and Tenant now desire to amend the terms of the Agreement to provide for additional Renewal Terms beyond the Original Term, and to make other changes. NOW THEREFORE, in exchange for the mutual promises contained herein, Owner and Tenant agree to amend the Agreement as follows: 1. Any capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement. The recitals in this Second Amendment are incorporated herein by this reference. "APT" shall be replaced throughout the Agreement with "Tenant". 2. Section 3 of the Agreement is amended by replacing "Four (4) successive" with "Ten (10) successive", thereby adding six (6) additional five (5) -year Renewal Terms to the Agreement beyond the Original Term, and extending its total term to December 31, 2052, unless sooner terminated as provided in the Agreement. 3. Section 4B of the Agreement is amended by adding the following the end of the section: Site Name: Lake Jessup (VS) BU: 825280 - 1 - PPAB 2583159v 1 Notwithstanding, and in lieu of the foregoing Rent escalations, commencing on January 1, 2023, and every year thereafter (each an "Adjustment Date"), the annual Rent shall increase by an amount equal to five percent (5%) of the annual Rent in effect for the year immediately preceding the Adjustment Date. 4. Section 15I of the Agreement, as same was amended in the First Amendment, is amended by supplementing Tenant's notice addresses by adding the following thereto: With a copy to: T -Mobile USA Tower LLC, c/o Crown Castle USA Inc. E. Blake Hawk, General Counsel Attn: Legal -Real Estate Department 2000 Corporate Drive Canonsburg, Pennsylvania 15317-8564 5. The Agreement is amended by adding a new Section 16 to the end of the Agreement stating the following: 16. RIGHT OF FIRST REFUSAL. If Owner receives an offer from any person or entity that owns towers or other wireless telecommunications facilities (or is in the business of acquiring Owner's interest in this Agreement) to purchase fee title, an easement, a lease, a license, or any other interest in the Premises, or Owner's interest in this Agreement, or an option for any of the foregoing, Owner 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. Owner'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, and the proposed closing date. If the Owner'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 (15) days thereafter. If Tenant does not exercise its right of first refusal by written notice to Owner given within thirty (30) days after receipt of notice of the offer, Owner may convey the property as described in the Owner's notice. If Tenant declines to exercise its right of first refusal, then this Agreement shall continue in full force and effect and Tenant's right of first refusal shall survive any such conveyance. Tenant shall have the right, at its sole discretion, to assign the right of first refusal to any person or entity, either separate from an assignment of this Agreement or as part of an assignment of this Agreement. Such assignment may occur either prior to or after Tenant's receipt of Owner's notice and the assignment shall be effective upon written notice to Owner. Site Name: Lake Jessup (VS) BU: 82280 - 2 - PPAB 2583159v1 If 6. Representations, Warranties and Covenants of Owner. Owner represents, warrants and covenants to Tenant as follows: (a) Owner is duly authorized to and has the full power and authority to enter into this Second Amendment and to performs all of Owner's obligations under the Agreement as amended hereby. (b) Except as expressly identified in this Second Amendment, Owner 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 Agreement as amended hereby and the rights of utility providers under recorded easements. (c) Upon Tenant's request, Owner shall discharge and cause to be released (or, if approved by Tenant, subordinated to Tenant's rights under the Agreement 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, Owner shall cure any defect in Owner'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 Agreement, and to Owner'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 Agreement. (f) Owner 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 Agreement as amended hereby, and ensure Tenant's continuous and uninterrupted use, possession and quiet enjoyment of the Premises under the Agreement as amended hereby. 7. IRS Form W-9. Owner agrees to provide Tenant with a completed IRS Form W- 9, or its equivalent, upon execution of this Second Amendment and at such other times as may be reasonably requested by Tenant. In the event the Premises is transferred, the succeeding Owner shall have a duty at the time of such transfer to provide Tenant with a completed IRS Form W-9, or its equivalent, and other related paper work to effect a transfer in rent to the new Owner. Owner'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. 8. In all other respects, the remainder of the Agreement shall remain in full force and effect. Any portion of the Agreement that is inconsistent with this Second Amendment is hereby amended to be consistent with this Second Amendment. 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. Site Name: Lake Jessup (VS) BU: 825280 - 3 - PPAB 2583159v1 IN WITNESS WHEREOF, Owner and Tenant have signed this instrument under seal, and have caused this Second Amendment to be duly executed on the day and year first written above. OWNER: CITY OF WINTER SPRINGS, a Florida incorporated muni ' ality By:. (SEAL) Print Na��e: Q� 1 i �:. V t� 4- Title: Site Name: Lake Jessup (VS) BU: 825280 - 4 - PPAB 2583159v1 rj IN WITNESS WHEREOF, Owner and Tenant have signed this instrument under seal, and have caused this Second Amendment to be duly executed on the day and year first written above. TENANT: T -MOBILE USA TOWER LLC, a Delaware limited liability company, By: CCTMO LLC, a Delaware limited liability company, its Attorney -in -Fact By: (SEAL) Print Name: Lisa A. Sedgwick RET Manager Title: Site Name: Lake Jessup (VS) BU: 825280 - 5 - PPAB 2583159v1