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HomeMy WebLinkAboutUnison Site Management - 815 E. Nees - Net Profits - 2014l1'- ,'q L r/ u lao/ { NET PROFITS AGREEMEI\T THIS NET PROFI is made as of day of August,21l4 (,,Effective Date',) by and between Ci al corporation ddress is 2t00 Frerno St *flilfl""i Fresno, California Unison Site Management LLC, a Delaware limited liability company, whose address is P.O. Box 1951 Frederick, Maryland 21702-0951 ("Unison"). All references hereafter tô "IJnison" and "Site Owner" shall include their respective heirs, successors, personal representatives, lessees, licensees and assigns (Unison and Site Owner, collectively, ,,parties"). RECITALS WHEREAS, Site Owner is the owner of that certain real property ("Propetv") located in the City of Fresno, and County of Fresno, in the State of California, having a street address of 8lj B. N..r Avenue, Fresno, California 93720; WHEREAS' the Property is subject to certain existing leases and license agreements (collectively, "Existing Agreements") and may be subject to New Agreements (as hereafter defined) thãt require the ìessees år licensees thereunder to pay rents, license payments, es"ãlationt and any other amountslsuch amounts, collectively the "Rent"); WHEREAS, as of August ,2014, the Parties entered into a Wireless Communication Easement and Assignment Agreement (the "Easement Agreement"), pursuant to which Site owner granted to Unison certain easements in the Property (the "Easement"), and assigned to Unison the Existing Agreemen-ts; WHEREAS' the Easeme on the right to lease, license, transfer or assign, in wholeor in paÍ, or permit the use of the and/or customers of unison (collectively, "ıustomers,,)and grants Unison the right to any tated term of the Easement Agreement; \üHEREAS, the Parties agree that "scheduled Rent" means the Rent due, at any point in time, inaccordance with the provisions of the Existing Agreeme cheduledRånt shall begin onthe Effective Date and continue through the stated term For purposes of deterriiningScheduled Rent, the Existing Agreements are deemed to r throúghout the stated term ofthe Easement Agreement; WHEREAS, the Parties agree that "Unison Rent" means the cumulative amount of Scheduled Rent due toUnison from the Effective Date through the date on which the amount is calculated (,,Date of Determination,,); WHEREAS, the Parties recognize that in the future, Unison may enter into agreements with Customers("New Ag{e.ements") pursuant to which Unison may lease or license, or consent to a sublease, sublicense or co-location with respect to portions of the Easement which lie within and/or outside the boundaries of the premisesdemised in the Existing Agreements which may result in Unison actually receiving Rent that is greater than UnisonRent ("Excess Revenue"); WHEREAS' Unison has agreed to pay to Site owner frfty percent (50%) of Excess Revenue, if any, as setfofth below; Now' THEREFORE, for and in consideration of the sum of Two Hundred and Three Thousand andSeventy-Three and No/I00 ($203,073.00) Dollars and other good and valuable consideration, the receipt andsufficiency of which site owner does hereby acknowledge and giant Unison full discharge and acquittance thlrefor,Site Owner and Unison agree to the following: 1' Stipulation . and Acknowledgement. The Parties stipulate, acknowledge, and agree that thisAgreement (i) does not constitute an "executory contract" under Section 365 of the United ıtates Bankruptcy Code, Unison Site #255798 NPA 0407 I 11 U.S.C. $ 365; and (ii) is non-executory in nature, and therefore is not subject to rejection under Section 365 of the United States Bankruptcy Code, I I U.S.C. $ 365, The Parties stipulate, acknowledge, and agree thatthis Agreement does not impose any continuing oblìgations on the Site Owner whatsoever. 2. Acknowledgement Concerning Effect of Easements. The Parties acknowledge and agree that, pursuant to the Easement Agreement and the easements created and real property rights granted to Unison under the Easement Agreement, only Unison is entitled to collect and receive Rent from the Existing Agreements and New Agreements. 3. Excess Revenue. Notwithstanding the acknowledgement contained in Section 2 above, Unison shall pay to Site Owner, on a monthly basis, hfty percent (50%) of all Excess Revenue, if any, from the Rent actually received by Unison from Customers (the "Net Prof,rts Payment"), Unison shall remit the Net Profits Payment to Site Owner on the fifteenth (l5th) day or first business day thereafter of each month throughout the term hereof, based on the amount of Excess Revenue, if any, actually received by Unison during the preceding month, less (i) any costs and expenses actually incurred by Unison due to the failure of Site Owner to comply with its obligations under the Easement Agreement and any amounts due to Unison (including, without limitation, any reimbursement or offset) under the Easement Agreement, and (ii) fifty percent (50%) of collection costs, attomeys' fees and coult costs actually incurred by Unison in enforcing or otherwise litigating the terms of any Customer agreement. 4. Unison Rent, Throughout the term of this Agreement, Unison is entitled to receive the amount of Unison Rent as determined in accordance with the provisions of this Agreement. The Parties intend that if at any time during the term hereof the Rent actually received by Unison is less than Scheduled Rent, then Unison shall retain all Rent, until such time as Unison has received the full amount of Unison Rent which would then be due to Unison as of the Date of Determination. The obligation of Unison to pay any amounts to Site Owner pursuant to this Agreement is expressly subject to the condition that at any point in time throughout the term of this Agreement, Unison shall have received the full amount of Unison Rent due to Unison as of the Date of Determination. 5, Termination, This Agreement shall terminate, and the payment and other obligations of Unison hereunder shall immediately cease and be of no effect upon termination of Unison's interest in the Property for any reason. 6. Default. (a) In the event of a monetary default ("Default") hereunder by Unison, Site Owner shall provide Unison with written notice of the Default, and Unison shall have fifteen (15) days from its actual receipt of such notice to cure same, If Unison fails to cure the Default within the foregoing grace period, then Site Owner may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; and/or (ii) proceed by appropriate court action to enforce the terms of the Agreement. Further, Site Owner is not entitled to terminate the Easement Agreement or terminate the easements created under such agreement for any reason whatsoever (including any breach of this Agreement or the Easement Agreement). (b) In the event of any dispute (including any dispute over an alleged Default) or non-monetary default arising out of this Agreement, the following dispute resolution process shall be followed: (l) upon a party's written notice of dispute to the other party, an authorized representative of the Site Owner and Unison shall, through a good faith negotiation, attempt to settle a written resolution with thirty (30) days and (2) if such negotiation attempts fail, the parties must participate in non-binding mediation before either party may initiate litigation. The parties shall mutually select, in writing, a mediator with at least 5 years experience. The pafties shall share the mediator's fees equally. In the event the parties are unable to reach a mutually acceptable resolution of the Claim within 20 working days of the state of the mediation, unless extended or otherwise terminated by written mutual agreement of the parties, mediation shall terminate. Any settlement reached must be in writing and is subject to approval by the City Manager or City Council consistent with City laws and policies. If the dispute continues after exhausting all aforementioned measures, litigation may be initiated. The prevailin gparty, in any proceedings under this Section 6, shall be entitled to recover all costs incurred in connection therewith, including legal fees, Unison Site #255798 NPA O4O7 7 . Severability, The Parties agree that if any term of this Agreement is found to be void or invalid, such provision shall be fully severable herefrom and such invalidity shall not affect the.remaining terms of this Agreement, which shall continue in full force and effect, and this Agreement shall be reformed and construed as if such invalid provision had never been contained herein, and if possible, such provisions shall be reformed to the maximum extent permitted under applicable law to render same valid, operative and enforceable to reflect the intent ofthe Parties as expressed herein, 8' Absence of Certain Representations or Warranties. Site Owner acknowledges that Unison has not made any representations or wananties to Site Owner concerning the amount of Excess Revenue, if any, to which Site Owner may be entitled to receive pursuant to the Agreement, and Unison hereby disclaims all such representations and warranties. 9 ' Receipt of Certain Funds by Site Owner. In the event Site Owner receives any revenues or checks due Unison pursuant to the Existing Agreements or otherwise with respect to the Easement, Site Owner shall promptly deliver such funds and/or endorse such checks to Unison for distribution pursuant to the terms hereof. l0' Assignment; Secured Parties. Unison has the unrestricted right to assign, mortgage or grant a security interest in all of Unison's interest in and to this Agreement, and may assign thislgreement to any such assignees, mortgagees or holders of security interests, including their successors and assigns=l,,Secured parir', or, collectively, "Secured Parties"), Site Owner agrees to notiÛr Unison and Secured parties lprovia"a-nirãi nu,given Site Owner notice and contact information of Secured Parties) simultaneously of any dèfault by Unison andgive Secured Parties the same right to cure any default. If any Secured Party sháll succêed to Uniion's interest under this Agreement, such Secured Party shall have no liability for any defaulti of Unison accruing prior to the date that such Secured PaÍy succeeds to such interest. Site Owner will enter into modifications oi ihi, Ag.eerent reasonably requested by any Secured Parly. Site Owner shall have the right to assign or grant a security interest in this Agreement, provided that Unison shall not be bound by any such assignment oi secuiity interest unless Unison receives notice of such assignment or security interest, together with the cone"t notice addiess of such assignee orgrantee, All payments made by Unison to Site Owner prior to receipt of the foregoing notice shall be deemed to satis$r the payment obligations of Unison hereunder. I t ' Estoppel-Certificate. At any time during the term hereof, each parly shall have the right to deliverto the other a statement of such parly certifl,ing: (i) that this Agreement is unmodif:red and in full forıe and effect(or, if there have been modifications, stating the modifications and that the modifred Agreement is in full force andeffect); (ii) whether or not, to the best knowledge of the responding party, the requãstin g party is jn default inperformance of any of its obligations under this Agreement, and, irso-, ipecisring eaðh sucñderaùt; (iii) that there he respondin ny other informatiôn ieasonably s Agreement responding party fails to disputä by delivery t the naturJand òircumstances of el Certificate he responding parry within ten (10) days of receipt of theEstoppel Certificate, then all matters specified in the Estoppel Certifrcate shall be deemed 1¡ue and conect, and theEstoppel Certificate shall thereafter be binding on the Parties, Secured Party or any party designated by therequesting party, and all of such parties may thereafter rely on the Estoppel Certificate as á conclusivè statemént offact by the responding party as to the matters set forth therein. 12' Audit. Site Owner shall have the right to conduct an audit of Unison's books and recordspertaining to the rental income from the Easement and any amounts to be paid to Site owner hereunder, upon atleast thirry (30) days prior written notice to Unison delivered on or before December 3l of the calendar yearfollowing the calendar year for which the audit is to be conducted. Site Owner shall bear all reasonable costs of theaudit, including, without limitation, reasonable copying costs. 13. and shall be de or the earlier o addresses of Si providing a new recipient name and address by notice as s Unison Site #255798 NPA O4O7 14. No Joint Venture or Partnership. Neither parly shall be, or hold itself out to be, the agent of the other party and neither parly shall have the authority to bind or commit the other parfy. Neither party shall be empowered to accept legal process on behalf of the other party. Nothing contained in this Agreement shall be deemed to create a partnership or joint venture between the Parties. 15. Miscellaneous. (a) The Parties agree that the recitals and prefatory phrases and paragraphs set fofth above are hereby incorporated in full, and made a part of, this Agreement; (b) this Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supersedes all offers, negotiations and any other written or verbal agreements; (c) any amendments to this Agreement must be in writing and executed by both Parties; (d) this Agreement is governed by the laws of the State in which the Property is located; (e) venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California; (f) the section headings of this Agreement have been inserted for convenience of reference only, and shall in no way modi! or restrict the terms of this Agreement; (g) Site Owner acknowledges that Unison has not provided any legal or tax advice to Site Owner in connection with the execution of this instrument; and (h) this Agreement may be executed in any number of counterparts, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument. ISTGNATURE PAGE FOLLOWì Unison Site #255798 NPA O4O7 above. ..UNISON'': T14 UNI SITE MANAGE LLC, a Del By: Title: Address: T14 Unison Site Management LLC P.O. Box l95l Frederick, Maryland 217 02-09 5 I Tel: (646) 4s2-54ss Fax: (301) 360-0635 Unison Site fl255798 NPA O4O7 tN WITNESS WHEREOF, the Parties hereto have executed this Agreement ''SITE OWNER'': CITY OF FRESNO, as of the date first written Name: Kerri L. Donis Title: Fire Chief ATTEST: YVONNE SPENCE, CMC c B 8/26/214 APPROVED AS TO FORM: Deputy City Attorney Address: City of Fresno Attention: Ftte têt 2600 Fresno Street, 2nd Floor Fresno, Ca Tel: (559) a Californi nicipal corporation Name: Bruce Rudd Title: City City Att 's