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HomeMy WebLinkAboutResolution 2009-102 settlement agreement with the estate of Irene WelterMARANA RESOLUTION N0.2009-102 RELATING TO TECHNOLOGY SERVICES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A BEACON HILL TELECOMMUNICATIONS SITE SUBLEASE AGREEMENT WITH SIMPLY BITS, LLC AND A FIRST AMENDMENT TO BEACON HILL COMMUNICA- TIONS SITE LEASE AND SETTLEMENT AGREEMENT WITH THE ESTATE OF IRENE WELTER, DECEASED; AND ESTABLISHING AN EFFECTIVE DATE WHEREAS Simply Bits, LLC currently provides Internet services, operations and mainte- nance to the Town of Marana, and has certain communications equipment on property leased by the Town of Marana from the Estate of Irene Welter, Deceased ("Welter") located on Beacon Hill; and WHEREAS the Town of Marana's lease with Welter for the use of the Beacon Hill premises did not authorize the placement of third-party equipment on the premises; and WHEREAS Welter, Simply Bits, and the Town of Marana have reached agreements and ac- commodations which provide for the compensation to Welter for the past and future use of the prem- ises on Beacon Hill by Simply Bits; and WHEREAS the Town Council finds that the adoption of this resolution is in the best interests of the Town and its residents. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, as follows: Section 1. The First Amendment to Beacon Hill Communications Site Lease and Settlement Agreement attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it and the Memorandum of Agreement that accompanies it for and on behalf of the Town of Marana. Section 2. The Beacon Hill Telecommunications Site Sublease Agreement between Simply Bits and the Town of Marana attached to and incorporated by this reference in this resolution as Ex- hibit B ishereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. Section 3. The Town's Manager, Technology Services Director, and staffare hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the Agreements referenced in Section 1 and Section 2 of this resolu- tion. Section 4. This resolution is an administrative act and shall be effective immediately upon its passage. Marana Resolution 2009-102 - 1 - PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 23rd day of June, 2009. ATTEST: yn ~'~$ronson; Town Clerk AS TO FORM: t' ~ ~" ., ~, ~ `F,xank Cassidy, Town Atto Mayor Ed Honea ~®1~~111~~ ~ ~! `0;~~ ~~aum~is,, ~0~ GpRPORq~'F ~ .®. o00 .SEAL Marana Resolution 2009-102 - 2 - ,r BEACON HILL TELECOMMUNICATIONS SITE SUBLEASE AGREEMENT BETWEEN SIMPLY BITS AND TOWN OF MARANA THIS BEACON HILL TELEGOARvIUNIGATIONS SITE SUBLEASE AGREEMENT {this "Sublease"} is dated June ~- z-, 2009, by and between SIMPLY BITS, LLC, an Arizona limited liability company, having an office at 5225 North Sabino Canyon Road, Tucson, AZ 85750 {"Simply Bits"} and the TowN oI~ 11RI~RAI~IA, an Arizona municipal corporation, having an office at 11555 West Givic Center Drive, Marana, AZ 85753 {"Marana"}. Simply Bits and Marana are sometimes referred to collectively as the parties, any one of which is sometimes individually referred to as a party. RECITALS A. Marana is the lessee of a telecommunications site known as and referred to in this Sublease as the "Premises" pursuant to the "Beacon Hill Communications Site Lease and Settlement Agreement" with the Estate of Irene Welter, Deceased, by and through her Personal Representative, Bill Welter ("Welter"), recorded in the Pima County Recorder's office on January 14, 2005, at Docket 12469, Page 3461 {the "Original Welter Lease"). B. The "Premises" is described in the Original Welter Lease as follows: {a} [A small building ("the Building") on Beacon Hill (the "Land"j] and the approximately 600 square feet of the Land where the Building is located and a reasonable area immediately surrounding the Building to accommodate the Town Facilities..., (b) antenna space on the Tower located on the Land, and (c) and a31 access and utility easements necessary or desirable for the use of the Building and the Tower for the installation and maintenance of the Town communication equipment. The Land is located in the northwest quarter of Section 17, Township 12 South, Range 12 East, Gila & Salt River Meridian, Town of Marana, County of Pima, State of Arizona, at the top of Beacon Hill, and more particularly identified as Pima County Assessor Tax Parcel No. 226-03-033B. C. The Original Welter Lease did not permit Marana to allow the Premises to be used for any third-party communications. D. Marana allowed Simply Bits to install certain equipment on the Premises which serves Marana and other Simply Bits customers, and Marana has, concurrently with this Sublease, entered into a "FIRST AMENDMENT TO BEACON HILL COMMU-NICATIONS SITE LEASE {Q0~15i99.DOCi2} 1 6716i20Q93;39P~I AND SF,TTLEMENT AGREEMENT" with Welter to compensate for this and to address, facilitate, and compensate for this Sublease. E. Marana and Simply Bits desire to enter into this Sublease to accommodate the existing Simply Bits equipment located in and on the Premises. AGREEMENT NOW THEREFORE, in consideration of the covenants and agreements hereinafter set forth to be performed by the parties, it is agreed by and between Marana and Simply Bits as follows: 1. SUBLEASE AND USE. Marana hereby subleases the Premises to Simply Bits for the purpose of operating, maintaining and repairing its existing equipment {the "Simply Bits Equipment"}; specifically, three approximately three-foot-long antennas, a twa-foot parabolic dish antenna, and a cluster management module affixed to the top of the Building, and a backbone router and a customer access router located inside the Building. Any increase in the size or number of Simply Bits antennas or dishes on the Premises requires Marana's and Welter's prior written approval. 2. INCORPORATION OF UNDERLYING AGREEMENTS. To the extent of the rights and obligarions set forth in this Sublease, Simply Bits shall comply with and be bound by all of the provisions of the Original Welter Lease as amended by the "FIRST AMENDMENT To BEACflN HILL COMM[JNICAT`IONS SI rE LEASE AND SETTLF.,MENT AGREEMENT," {the "First Amendment to Welter Lease'') a true and correct copy of which is attached as Exhibit A to this Sublease and incorporated here by this reference. 3. TERM. The term of this Sublease shall begin on the effective date of the First Amendment to Welter Lease and shall thereafter be concurrent with the term of the Original Welter Lease, as it may be extended from time to time. The Original Welter Lease is currently scheduled to terminate on December 31, 2014. Simply Bits may terminate this Sublease at any time if any of the following occurs: {a) Simply Bits is unable to obtain or maintain any license, permit or after approval necessary far the operation of the Simply Bits Equipment; or {b) if Simply Bits is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a tack back of channels or change in frequencies; or {c) if any environmental report for the Premises reveals the presence of any Hazardous Material after the Commencement Date. Anything in the foregoing notwithstanding, the Simply Bits may terminate this Sublease for its convenience and without cause upon six months' notice to Marana, provided that Simply Bits's termination does not affect communication services provided to Marana. 4. SUBLEASE RENT. Simply Bits shall pay to :Marana in advance a monthly rent of X210 per month, beginning July 1, 2009, adjusted as follows {all of which together constitutes "Sublease Rent"}: a. Annual adjustment. Each January 1 beginning on January 1, 2011, the previous year's Sublease Rent {excluding the additional amount set forth in paragraph b below) shall be adjusted upward by 3°,l0. {(!{?Q25199.DOC / 2} ~ 6i16~2009 3:39 Pioi t~o~l ~ i 99.noc t ap 6 1E'2QC?9 3:39 Plt g.,,' 5. UTILITIES COST. Marana shall have the right to survey the electric consumption of the Simply Bits Equipment on the Premises and if any such survey discloses that the average electric consumption of the Simply Bits Equipment is greater than $30 per month, then the Sublease Rent payable to Marana shall thereafter be adjusted to reflect current consumption. b. MAINTENANCE, OPERATION AND REPAIR OF EQUIPMENT. a. Marana shall provide to Simply Bits the existing space used by the Simply Bits Equipment on the Premises, and access to the Premises in substantially the same manner as the Simply Bits currently has space and access, and all existing wiring, cabling and electrical fees to operate the Simply Bits Equipment. Simply Bits shall be permitted to enter the Premises as Simply Bits reasonably determines is reasonably necessary to operate, maintain and repair the Simply Bits Equipment and to provide any contracted services to Marana and other Simply Bits customers. b. Prior to replacing or modifying Simply Bits Equipment or improvements not located on the Premises on when the term of this Sublease begins, Simply Bits shall give Marana and Welter a reasonably detailed drawing or written description thereof and shall not proceed without the prior written approval of Marana, acting through the Marana Technology Services Director, and Welter. c. All operations, maintenance, repairs and replacement of the Simply Bits Equipment shall be performed at Simply Bits's sole cost and expense, in a good and workmanlike manner, only after obtaining any permits required by law, in compliance with all applicable laws and in a manner designed to minimize any interference with the operation of other equipment operated by Marana and others on the Premises and in the surrounding area of Beacon Hill owned by Welter. Simply Bits shall, at its sole cost and expense repair or refinish any surface of the Premises that is damaged by or during the installation or operation of the Simply Bits Equipment and caused by Simply Bits or any of its agents, representatives, employees, contractors, subcontractors, or invitees. If Simply Bits fails to repair or refinish any such damage, Marana may, in its sole discretion, repair or refinish such damage and Simply Bits shall reimburse Marana of all reasonable costs and expenses incurred in such repair or refinishing, provided, however, that Marana shall give Simply Bits ten days' written notice before taking any action to repair or refinish damage. d. Upon the expiration ar termination of this Sublease, Simply Bits shall remove all of the Simply Bits Equipment and other personal property from the Premises in a manner consistent with the terms of the Original Welter Agreement as modified by the First Amendment to Welter Lease. e. Simply Bits, through its designated and approved employees and contractors, shall be solely responsible for the maintenance and care of the Simply Bits Equipment and connecting equipment and shall maintain the same in a clean, sanitary and safe condition and in good repair and free of any defects at all times during this Sublease. {~ao is ~9s.aoc r 2} 3 6r~~;a~~s x:39 r~s f. Simply Bits shall label and identify all Simply Bits Equipment with Simply Bits's name and telephone number. 7. ACCESS. Marana acknowledges that the Original Welter Agreement as modified by the First Amendment to Welter Lease Simply Bits and its employees, agents and contractors shall have access to the Premises without notice to Marana or Welter 24 hours a day, seven days a week, at no charge. 8. AUTHORIZED PERSONNEL LIST. For security purposes, Simply Bits shall provide Marana with a list of the names of all personnel who are authorized to enter onto the Premises pursuant to this Sublease. The list shall be updated whenever a change of personnel occurs. Marana is authorized to block entry to any personnel whose name is not on the list. This Section shall be interpreted as a right, but not an obligation, of Simply Bits to police or restrict entry onto the Premises. 9. INSURANCE. Simply Bits shall carry, or cause to be carried, throughout the term of this Sublease, at its sole cost and expense, with carriers licensed to do business in the State in which the Towers are located as follows: (a) workers' compensation benefits insurance to the extent and in the amounts required by applicable governmental or quasi-governmental laws, rules, regulations and requirements (collectively, "Governmental Requirements"); and (b) bodily injury and property damage insurance with a combined single limit of at least $1,000,000 per occurrence. Simply Bits shall, at its sole cost and expense, procure and maintain throughout the term of this Sublease a property insurance policy insuring all of the Simply Bits Equipment. All proceeds of such insurance shall be used to repair, replace, or remove the Simply Bits Equipment in a manner consistent with the terms of this Sublease. Said insurance policies shall provide that the policy shall not be canceled, fail to be renewed or materially amended without at least 30 days written notice to the insureds. Marana and Simply Bits shall include a waiver of subrogation in their respective policies of property insurance. All insurance required to be carried by Simply Bits herein shall be with an insurance company licensed to do business in the State in which the Building is located and rated not lower than AJX in the most recent A.M. Best Rating Guide. 10. INDEMNITY. Marana and Simply Bits each shall indemnify the other against and hold the other harmless from any and all costs {including reasonable attorneys' fees) and claims of liability or loss which arises out of the use and/or occupancy of the Premises by the indemnifying party. This indemnity does not apply to any claims arising from the sole negligence or intentional misconduct of the indemnified party. The indemnity obligations under this Paragraph will survive termination. of this Sublease. l 1. DEFAULT. If either party is in default under this Sublease for a period of {a) ten days following receipt of notice from the non-defaulting party with respect to a default that may be cured solely by the payment of money, or (b) 30 days following receipt of notice from the non-defaulting party with respect to a default that may not be cured solely by the payment of money, then, in either event, the non-defaulting party may pursue any remedies available to it against the defaulting party under applicable law, including, but not limited to, the right to terminate this Sublease. In the non-monetary default may not reasonably be cured within a 30- day period, this Sublease may not be terminated if the defaulting party commences action to cure the default within such 30-day period and proceeds with due diligence to fully cure the default. {fl0015199.DOC i` 2} 4 61ib.~ 2009 3:34 P'.vi l2, MISCELLANEOUS. a. Marana covenants that at all times during the term of this Sublease, Martina shall not disturb Simply Bits's quiet enjoyment of its rights under this Sublease so long as Simply Bits is not in default. b. In the event of any litigation between the parties, the prevailing party shall be entitled to reasonable attorney's fees. c. This Sublease may not be modified, nor its provisions waived, except by a writing signed by each of the parties hereto. d. Any notice, correspondence, demand or other communication, which is required or permitted by this Sublease, shall be in writing and shall be sent postage prepaid, by certified mail, return receipt requested, or by hand or overnight express delivery, receipt requested, to either party hereto at its address hereinabove set forth, or at such other address as either such party shall have provided the other by written notice similarly given, In addition, a copy of any notice required or permitted by this Sublease shall be given in writing and shall be sent postage prepaid, by certified mail, return receipt requested, or by hand or overnight express delivery, receipt requested, to Bill Welter, 2341 South Calle Mesa del Oso, Tucson, Arizona 85748. Any notice shall be deemed given on the date delivery is receipted or refused. e. This Sublease shall be governed by the laws of the State of Arizona. The parties agree that Pima County, Arizona shall be the venue for any litigation regarding this Sublease. f. If any term or provision of this Sublease, or the application thereof to any person or circumstance shall, to any extern, be invalid or unenforceable, the remainder of this Sublease, or the application of such term or provision to persons, entities or circumstances other than. those as to which. it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Sublease shall be valid and enforceable. g. This Sublease embodies the entire agreement between the parties hereto with relation to the transactions contemplated hereby, and there have been and are no covenants, agreements, representations, warranties or restrictions between the parties hereto with regard thereto other than those specifically set forth herein. Each party shall, without charge, furnish the other with such documents not creating any obligations additional to those imposed by this Sublease as may reasonably be requested to fully effectuate the transactions contemplated by this Sublease. h. Martina acknowledges that in the event of a breach of this Sublease by Martina, Simply Bits shall have the right to obtain specific performance or other injunctive relief in addition to monetary damages and any other remedies permitted by law. {04Q15199.DOC 12} ~ 6116120Q9 3:39 PM i. The individuals executing this Sublease on behalf of Marana and Simply Bits each represent that they are authorized to execute this Sublease on behalf of Marana or Simply Bits, as the case may be, and at upon execution hereof this Sublease shall be binding upon Marana or Simply Bits, as the case maybe. j. Either party shall, within ten days after request by the other, provide an estoppel letter as to such matters as are reasonably requested. k. This Sublease is an agreement running with the land with respect to the Premises and, upon any sale or other transfer of Marana's leasehold interest in the Premises, Marana shall assign this Sublease to the transferee and the transferee shall assume the obligations of Marana under this Sublease whereupon Marana shall have no further obligations under this Sublease from and after the date thereof. 1. Marana and Simply Bits acknowledge that this document shall not be construed in favor of or against the drafter by virtue of said party being the drafter. 13. ASSIGNMENT. Simply Bits shall not assign, sublet or transfer this Sublease without prior written approval of Marana and Welter; provided, however, that such approval shall not be required if such assignment, sublet or transfer: (i} is as a result or part of a merger, consolidation, other entity level transaction, or a transaction involving the sate of substantially all of Simply Bits's assets; (ii) has a good faith business purpose which is not designed principally to avoid the provisions of this Paragraph, provided, however, that such assignee, sublessee or transferee has the expertise and financial wherewithal to fulfill Simply Bits's obligations under this Sublease; or (iiij is to an entity that cantrols, is under common control with or is controlled by Simply Bits. 14. SUBORDINATION. This Sublease is subject to any bona fide mortgages, ground leases and all amendments and modifications thereof now or hereafter. 15. HAZARDOUS SUBSTANCES. Simply Bits agrees that it will not use, generate, store or dispose of any Hazardous Material (defined below) on, under, about or within the Premises in violation of any law or regulation. As used in this paragraph, "Hazardous Material" shall mean hazardous or radioactive material, polychlorinated biphenyls, friable asbestos or other hazardous or medical waste substances as defined by the Comprehensive Environmental Response, Compensation and Liability Act, as amended, or by any other federal, state or local law, statute, rule, regulation or order concerning environmental matters. This paragraph shall survive the termination of this Sublease. 1.6. TA7~ES. During the term and any extension hereof, Simply Bits shall be responsible for the declaration and payment of any applicable taxes or assessments against the personal property awned by Simply Bits located on the Premises. Simply Bits agrees, upon request of Marana or Welter, to provide Marana with timely evidence satisfactory to Marana that all taxes due and payable for Simply Bits's property have been paid. 17. RECORDING. This Sublease shall not be recorded. However, Marana agrees to execute and deliver to Simply Bits a Memorandum of Sublease in the farm attached to and incorporated by this reference in this Sublease as Exhibit B and acknowledges Simply Bits's {~0415199.DOC 1 Z} 6 6r 1 F'20d9 3:39 P'~i ~`, right at Simply Bits's sole option and cost to record the Memorandum of Sublease in the office of the Pima County Recorder. 18. CONFLICT OF INTEREST. This Sublease is subject to A.R.S. §38-511, which provides for cancellation in certain instances involving conflicts of interest. 19. EXCUSABLE DELAY. If either party is unable due to causes beyond its reasonable control to carry) out its obligations under this Sublease in whole or in part and if such Party gives written notice and full details of an excusable delay (including, without limitation, a . fpr~ce majeure event) to the other as soon as practicable after the occurrence of the event, then the obligations of the affected Party will be suspended to the extent reasonably required as a result of such event. Excusable Deiav means an event that is not within the reasonable control of the affected Party, including, without limitation, war, riots, civil insurrection or acts of a common enemy, fire, flood, strikes or other labor difficulty, acts of civil or military authority, including government laws, orders, actions, inactions or regulations, embargoes. "Marana": Tow~I of TJIl~RANA, an Arizona municipal corporation By: Ed Honea, DT ayo~~ Date: "Simply Bits": SIIVIPLY BITS, LLC, an Arizona limited liability company d~f/ /"~• By: Name/Title: /3.~1 /ty F~ a/~~, ~+~~-~r- Date: 6 ! 2 2 -D t STATE of tYri~pG )ss County of p 11'Yl ~ ) The foregoing instrument,~~ was acknowledged before e}-~, on Via, 2009, by R ~Gl G~ ~ i'r e~ L'rY . ;the t11~ 111 k3f~~ o SIIvIPLY BITS, LLC, an Arizona limited liability company, on behalf of the company. My commission expires: f ~I-~~~.e i ~- . ~"~,~.,i~ C.~i7c Notary Public ti ~Vr~TI~~IE G~~X ~~iL~T.~RYf~I'Fs~a~-Site _r Arizona :; ~= '-'''-'' PAy Gramm. E'xpiies Aprf! 3~, X013 w. {OOri 15199. Df~C ;` 2 } 7 6/1612009 3:39 PM When recorded, return ta: SrvtnLZ- BITS LLC 5225 North Sabino Cannon Road Tucson. AZ 85750 MEMORANDUM OF SUBLEASE AP1V: 226-03-033B Txls ME3~i1©RANDIrn~ of SLJBL~ASE is entered into as of the day of June, 2009, by and between the Town of Marana, an Arizona municipal corporation, whose address is 11555 W. Civic Center Drive Marana, AZ 85653 ("Marana") and SItvIPLY Brrs LLC., an Arizona limited Liability company, with its principal place of business located at 5225 North Sabino Canyon Road, Tucson, Arizona 85750 {"Simply Bits"). All of the following are provided for more fully in the Sublease: 1. Marana and Simply Bits entered into a Telecommunications Site Sublease {"Sublease") dated as of June _, 2009, for the purpose of Simply Bits operating and maintaining communications equipment and other improvements ("Improvements") on the Premises. 2. The term of Simply Bits's tenancy under the Sublease is concurrent with the term of the `Beacon Hill Communications Site Lease and Settlement Agreement" with the Estate of Irene Welter, Deceased, recorded in the Pima County Recorder's office on January 14, 2005, at Docket 12469, Page 3461. 3. The subleased Premises, which is the property that is the subject of the Sublease, is located on Pima County Assessor's Parcel No. 226-03-033B, with an address of 10001 N. Silverbell Road in the Town of Marana, County of Pima, State of Arizona, including appurtenant utility and vehicular access. IN w~TNFSS w~~©F, the parties have executed this Memorandum of Sublease as of the date first written. above. Tc~~ o~ RrIARANA, an Arizona municipal corporation By: Ed Honea, Mayor Date: ~ ~ - d SILLY BITS, LLC., an Arizona limited liability company NamelT~,tle: i3~dr-ey FzdR., /''~e.~-d~~ Date: ~Z s-~eJ A~r~rr: eT~ STATE OF ~ 1 ' ~O 1 I; vl ~ SS County of_ ~~ ) The foregoing instrument was acknowledged before me on June a~:, 2009, by Cadiz ~~d~l' ,the h~ m b-~~"' of In~PLY BITS LLC., an Arizona limited liability company. camtnission __ -Public r ,~~ a OFFICIAL SENL NATALlE CC~X ~ r~, ~ `SIN ;?A}~Y PUP.LiG - Slate er Arizona ~ ~ ' ~'IIVIA Cf3fl1VTY ~` ~~' +~ly Comm. Expires Aprii 30, e013 F. ANN RODRIGUEZ, RECORDER DOCKET: 13966 RECORDED BY: JSH PAGE: 415 DEPUTY RECORDER y °F PI1t� NO. OF PAGES: 3 0497 PE -4 ���OC SEQUENCE: 20102500078 SMARA w',z 12/30/2010 TOWN OF MARANA �C� J b AAG 10:14 LEGAL DEPARTMENT IRIZO1`ZQ' 11555 W CIVIC CENTER DR A 3 MAIL MARANA AZ 85653 AMOUNT PAID $ 8.00 FIRST AMENDMENT TO BEACON HILL COMMUNICATIONS SITE LEASE AND SETTLEMENT AGREEMENT THIS FIRST AMENDMENT TO BEACON HILL COMMUNICATIONS SITE LEASE AND SETTLE- MENT AGREEMENT (this "First Amendment ") is entered into by and between the TOWN OF MA- RANA, an Arizona municipal corporation ( "Town ") and THE ESTATE OF IRENE WELTER, DE- CEASED, BY AND THROUGH HER PERSONAL REPRESENTATIVE, BILL WELTER ("Welter" The Town and Welter are sometimes referred to collectively as the Parties. RECITALS A. In 2005, the Parties entered into the "Beacon Hill Communications Site Lease and Set- tlement Agreement," recorded in the Pima County Recorder's office on January 14, 2005, at Docket 12469, Page 3461 (the "Original Agreement "), concerning the Town's lease of a communications site on Beacon Hill. The site is specifically described in the Original Agreement and referred to in both the Original Agreement and in this First Amendment as the "Premises." B. Paragraph 8 of the Original Agreement provided that the Town was not permitted to al- low the Premises to be used for any third -parry communications. C. Beginning in or around August 2006, the Town allowed a c iiiu Pa.LLY ve iu 5 ivu - BITS, LLC, ( "Simply Bits ") to install its equipment on the Premises in connection with the replace- ment of failing Town -owned equipment. D. The Parties have reached a settlement for the Town's failure to abide by the terms of the Original Agreement, and now wish to modify the terms of the Original Agreement to allow the Simply Bits equipment to remain on the Premises pursuant to a sublease between the Town and Simply Bits, and to provide for additional compensation to Welter to account for the Simply Bits equipment. E. The Parties also wish to modify the terms of the Original Agreement to clarify that the Premises may be used to provide additional or new public safety communications that benefit the Town and the Marana Police Department, and particularly communications equipment associated with the Pima County Wireless Integrated Network ( "PCWIN"), if the Town decides to participate in PCWIN. AGREEMENT 9 NOW, THEREFORE, based on the foregoing Recitals, which are incorporated here by this ref- erence, the Parties agree as follows: 1. Sealmea and Release. Welter hereby releases all claims of whatever nature for the Town's past use of the Land (as defined in the Original Agreement) and /or the Premises through June 30, 2009, effective upon the Town's single lump sum payment of Six Thousand Four Hundred Twenty Dol- lars ($6,420), which shall be paid within fifteen business days following the First Amendment Effec- tive Date. {00015201.DOC/} - 1 - 6/11/2009 9:03 PM FIRS TAMENDMENTTOMARANA /WEL TER BEAcoNHILLLEASE& SETTLEMENTAGREEMENT 2. Sublease to Simply Bits. The Town is hereby authorized to enter into a sublease of the Premises with Simply Bits for purposes of allowing the existing Simply Bits equipment to remain on the Premises. The existing Simply Bits equipment consists of three approximately three - foot -long an- tennas, a two -foot parabolic dish antenna, and a cluster management module affixed to the top of the Building (as defined in the Original Agreement) and a backbone router and a customer access router located inside the Building. Any increase in the size or number of Simply Bits antennas or dishes on the Premises requires Welter's and the Town's prior written approval. 3. Simply Bits's right of sublease assignnrnt. Any assignment of Simply Bits's rights in the sublease shall be subject to Welter's prior written approval, which shall not be unreasonably withheld. How- ever, Welter's prior approval shall not be required if the assignment, sublet or transfer: (i) is as a re- sult or part of a merger, consolidation, other entity level transaction, or a transaction involving the sale of substantially all of Simply Bits's assets; (ii) has a good faith business purpose which is not de- signed principally to avoid the provisions of this Paragraph, provided, however, that such assignee, sublessee or transferee has the expertise and financial wherewithal to fulfill Simply Bits's obligations under the sublease; or (iii) is to an entity that controls, is under common control with or is con- trolled by Simply Bits. 4. FiystAnrndnzrnEffectiwDate. This First Amendment shall be effective on the date it is fully executed by the Parties (the "First Amendment Effective Date "). 5. Additional nmt. On July 1, 2009 and on the first day of each month thereafter for so long as the Town's sublease with Simply Bits remains in effect, the Town shall collect from Simply Bits and pay to Welter as sublease rent Two Hundred and Ten Dollars ($210) per month, adjusted as follows (all of which together constitutes "Sublease Rent "): a. Annual adjuster Each January 1 beginning on January 1, 2011, the previous year's Sub- lease Rent (excluding the additional amount set forth in paragraph 6(b) below) shall be adjusted upward by 3% (not including the additional amount set forth in paragraph b below). b. A djusturntsfor tax and other ousts. The Town shall collect from Simply Bits and pay to Wel- ter any incremental increase in taxes or other costs owed by Welter relating to the Land and re- sulting from the Town's sublease of the Premises to Simply Bits, including without limitation any property, rental, sales, use, or other taxes levied by any governmental entity, or the Town's proportionate share of any costs validly imposed on the Land by a third party including, by way of example, any proportionate costs of access to the Land. 6. Effect of default by Sinply Bits. The pass- through arrangement for transferring payments from Simply Bits to Welter as reflected in this First Amendment and in the Town's sublease with Simply I Bits is being done as a matter of administrative convenience to the Parties. To that end, the Town shall not be inde endentl responsible for payment of the Sublease Rent if Sim 1 Bits fails to a the FS p Y p p Ym P Y pay ;6 Sublease Rent to the Town when due. However, if Simply Bits fails to make timely payment of the Sublease Rent, Welter shall have the right to demand that the Town remove all Simply Bits equip- ment from the Premises, in addition to any other remedy Welter may have as a matter of law. 7. Use. While this Agreement is effective, the Town may use the Premises for any lawful activity in connection with the provision of communications services necessary for the Town's municipal and governmental operations, including without limitation communications equipment associated with PCWIN, if the Town decides to participate in PCWIN. The Parties anticipate that the Town's {00015201.DCC/} -2- 6/11/2009 9:03 PM FIRSTAMENDMENTTOMARANA /WEL TER BEAcoNHILL LEASE & SETTLEMENTAGREEMENT d participation PCWIN will involve the placement of up to two additional communication dishes on the Premises, each not more than four feet in diameter, in addition to the installation of supporting equipment inside the Building. The Town is not permitted to use the Premises to provide third -party communications services other than those addressed in this First Amendment. 8. Access. Welter acknowledges that Town's rights of access under the Ori ginal Agreement may also be exercised by Simply Bits pursuant to the terms of its sublease with the Town. 9. Other tem. Except as modified by this First Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect and shall apply to this First Amendment. 10. Rwmrding This First Amendment shall be recorded by and at the expense of the Town in the office of the Pima County Recorder. 11. Conflicts of intemst. This First Amendment is subject to the provisions of A.R.S. 38 -511, which provides for cancelation of contracts by government entities in certain instances involving conflicts of interest. IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date of the last signature below. THE TOWN OF MARANA, an Arizona THE ESTATE OF IRENE WELTER, DECEASED, municipal corporation BY AND THROUGH HER PERSONAL REPRESENTATIVE, BILL WELTER By B Its: /' i `��� Its: Date: V Q /' Date: ,E1-�- "goo ATTEST: STATE OF ARIZONA ) County of Pima ) The foregoing instrument was acknowl- 9V ronson, Town Clerk edged before me this l� day of June, 2009, by Bill Welter, as Personal Representative of APPROVED AS TO ORM: ; the Estate of Irene Welter, deceased. My commission expires: r ank Ca Town Atto ss y, y N Public y -tate AMM"I usa My „u�nnnvsion Ex 11/0512009 {00015201.DOC/} - 3- 6/11/2009 9:03 PM FIRSTAMENDMENTTOMARANA /WEL TER BEAcoNHILL LEASE & SETTLEMENTAGREEMENT