CCR2007049.
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COMMON COUNCil - CITY OF MUSKEGO
RESOLUTION #049-2007
APPROVAL OF RELEASE AND SETTLEMENT AGREEMENT
BETWEEN THE CITY OF MUSKEGO AND
NEW CINGULAR WIRELESS PCS, llC
WHEREAS, The attached Release and Settlement Agreement terminates the July 13,
2001 lease between the City of Muskego and Telecorp Realty, LLC now d/b/a Cingular
Wireless, LLC relating to the wireless installation at the Mercury Drive water tower; and
WHEREAS, The Finance Committee has reviewed the attached Agreement and has
recommended approval to the Common Council.
NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of
Muskego, upon the recommendation of the Finance Committee, does hereby approve
the attached Release and Settlement Agreement between the City of Muskego and
New Cingular Wireless PCS, LLC.
BE IT FURTHER RESOLVED That the Mayor is authorized to sign the Agreement in
the name of the City.
DATED THIS 13th DAY OF March ,2007.
SPONSORED BY:
FINANCE COMMITTEE
Ald. Nancy Salentine
Ald. Eileen Madden
Ald. Neil Borgman
This is to certify that this is a true and accurate copy of Resolution #049-2007 which
was adopted by the Common Council of the City of Muskego.
3/07jmb
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Market: Central Region - IUWI
Cell Site FA Code: 10080385
Cell Site Number: WI 1 I 59
Cell Site Name: Muskego Water Tank
RELEASE AND SETTLEMENT AGREEMENT
THIS AGREEEMENT, made effective this day of ,2007 (hereinafter "Agreement")
by and between New Cingular Wireless PCS, LLC, (as successor in interest to AT&T Wireless PCS, Inc., a
Delaware corporation, by and through its agent AT&T Wireless Services, Inc., a Delaware corporation, or
one of its subsidiaries or affiliates) (hereinafter "Cingular") and the undersigned owners of Wl89 S8235
Mercury Drive, Muskego, WI; the City of Muskego, a Wisconsin municipal corporation (hereinafter
"Owner"), is as follows:
WITNESSETH:
WHEREAS, on or about June 13, 2001 Owner & Cingular entered into a Lease Agreement ("Lease")
which, upon termination by Cingular required restoration of the leased area ("Premises") to its general
condition prior to lease commencement, reasonable wear & tear excepted; and
WHEREAS, Owner & Cingular have agreed that Owner shall accept Cingular's termination of Lease
effective January 31,2007, as based on Cingular's letter dated September 29,2006. Notwithstanding the
terms and conditions of the Lease, the restoration of the Premises will require Cingular's removal of only
those items not depicted or listed on the attached Exhibit A, and the remaining assets specified therein will
transfer to Owner's ownership and control, consistent with the terms and conditions of this Agreement; and
WHEREAS, as consideration for Owner's agreement to the terms and conditions described herein,
Cingular agrees to pay the amount of Five Thousand Dollars and 00 Cents ($5,000.00) ("Fee"), payable
within sixty (60) days of the execution of this Agreement, which amount is accepted by Owner and is
agreed by both Owner and Cingular to be full consideration for all improvements transferred to Owner,
including antennas and cables; and
WHEREAS, as consideration for Owner's agreement to the terms and conditions described herein,
Cingular agrees to pay the amount of Seventy Thousand Dollars and 00 Cents ($70,000.00), payable within
sixty (60) days of the execution of this Agreement, which amount is accepted by Owner and is agreed by
both Owner and Cingular to be full consideration for all monthly rental payments owed the Owner; and
WHEREAS, as part of this Agreement, Owner agrees to execute the completion acknowledgment form as
attached hereto and incorporated herein Exhibit B, provided that Cingular has met its obligations as set
forth herein. Owner agrees that Owner's failure to sign the Exhibit B shall not permit it to contest the terms
and conditions of this Agreement or add additional requirements, provided Cingular has met its obligations
as set forth herein; and
WHEREAS, Owner and Cingular agree that Cingular or Owner may record the Memorandum of Release of
Lease ("Memo"), as attached hereto and incorporated herein as Exhibit C; and
NOW THEREFORE, for the valuable consideration recited herein, the receipt and sufficiency of which is
hereby acknowledged hereto by the undersigned, the parties agree as follows:
L Recitals. The recitals set forth above are incorporated herein as set forth in their entirety.
L Release. Owner, in consideration of the terms specified in this Agreement and payment of the Fee of
Seventy Thousand Dollars, releases and forever discharges Cingular, their agents, administrators, assigns,
contractors and subcontractors, from any and all claims, demands, damages, actions, causes of action or suits of
any kind or nature whatsoever in connection with or on account of any expected workmanship or durability of
the restoration of improvements as outlined herein that it may have, individually or jointly with another party,
including but not limited to claims for attorneys' fees related to, or arising in any way from, any acts or
Market: Central Region - IUWI
Cell Site FA Code: 10080385
Cell Site Number: WII159
Cell Site Name: Muskego Water Tank
. omissions of Cingular in connection therewith ("Claims"). This release is intended to be general in nature. All
obligations under the Lease will cease and neither party shall have any obligations to the other except for those
terms related to the environmental condition of the property which by its express terms survive the termination
or expiration of the Lease. Owner expressly waives any and all laws or statutes, of any jurisdiction whatsoever,
which may provide that a general release does not extend to Claims not known or suspected to exist at the time
of execution or the release, or those which if known would have materially affected the decision to give said
release.
1, Memo of Release. Each party agrees that the execution of this Agreement authorizes Cingular or
Owner to file a Memo within the applicable county in which the Premises is located. Each party agrees to
reasonably assist the other party to execute and record the Memo.
4. Transfer of Assets. For and in consideration of the good and valuable consideration described
herein, namely Five thousand Dollars, Cingular hereby CONVEYS, GRANTS, SELLS, TRANSFERS AND
ASSIGNS its existing improvements at the Premises ("Transferred Assets"), as more particularly described
in Exhibit A, to Owner effective with the date of this agreement_("Termination Effective Date"). Cingular
makes no warranties regarding the Transferred Assets. Owner agrees to accept the Transferred Assets as
is, where is, without any warranty of merchantability or fitness for any purpose whatsoever. Cingular
warrants that it owns the Transferred Assets at the time of transfer and that such are conveyed to Owner free
of all liens and encumbrances. Notwithstanding this disclaimer of warranties, Cingular will endeavor to
pass through to Owner any existing manufacturers' warranties on the Transferred Assets to the extent the
same are reasonably transferable. Owner and Cingular agree and acknowledge that no separate bill of sale
is needed. Keys or access to any property held by Cingular under the terms of the lease shall be delivered
to the City upon acceptance of this Agreement.
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Owner and Cingular acknowledge that it is Cingular's intent to herein convey to Owner, Cingular's entire right,
title and interest in and to the Transferred Assets and that if, despite Cingular's good faith efforts to describe
such Transferred Assets herein in its entirety, there are errors, omissions or discrepancies in such description,
Cingular will execute and deliver any instrument reasonably necessary to remedy or correct such, and, on
condition that Cingular does so, such errors, omissions or discrepancies will not constitute a breach by Cingular
of this Agreement. Notwithstanding the above, Cingular reserves the right to remove its personal property
prior to the Termination Effective Date.
,i, Authority. This Agreement constitutes a valid and legally binding obligation of each party
executing this Agreement. The execution of this Agreement, and the transactions and performance
contemplated hereby, has been duly authorized by the requisite action on the part of each party. Each
person signing this Agreement represents and warrants that it has full authority to execute the Agreement on
behalf of, and to bind to the Agreement, the party on whose behalf they are signing.
Q,. Entire Agreement This Agreement constitutes the entire agreement among the parties hereto, and
there are no agreements, understandings, warranties, or representations with respect to the matters set forth
herein except as specifically delineated herein. This instrument is not intended to have any legal effect, or to
be a legally binding agreement, or any evidence thereof, until it has been signed by each of the parties
hereto and all conditions to effectiveness have been satisfied.
L Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, legal representatives and assigns. This Agreement is made for the benefit of
Cingular and Owner and all who succeed to the rights and responsibilities of them, including without
limitation, their successors and assigns.
~ Authority of Law. This Agreement shall be interpreted under the laws of the State where the
Premises are located.
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Market: Central Region - IUWI
Cell Site FA Code: 10080385
Cell Site Number: WI! 159
Cell Site Name: Muskego Water Tank
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date last set forth below:
CINGULAR, NJ1 Cingu,:, Wi,.,." .PCS, LLC,
By: ,{lJ fA -
!2-d)
Print Name: Scott A. Root
Its: Real Estate and Construction Manager, IUWI
Date: -2- - Z 1-- D "7
OWNER: City of Muskego
By:
Print Name: John R. Johnson
Its: Mayor
Date:
TENANT ACKNOWLEDGEMENT STATEOFILL~~O IS)
) ss:
COUNTY OF )
Sl On the ~ day of .ÆÞ
, 2007, before me personally appeared Scott A. Root, and
acknowledged under oath that he is the Real Estate and Construction Manager, IL/WI of New Cingular
Wireless LLC, successor in interest to AT&T Wireless Services, Inc., the Delaware corporation that
executed the within and foregoing instrument (the "Corpora' ), and acknowledged the said instrument to
be the free and voluntary act and deed of the Co ati, and on oath stated that he nauthorized to
execute said instrument on behalf of the Corporati n. ~
If) /()~--Io a, Notary Public
My Commission Expires: Lvi j _If!. l
I /
STATE OF WI
COUNTY OF Waukesha
OWNER ACKNOWLEDGMENT
)
) ss:
)
BE IT REMEMBERED, that on this
_
day of , 2007 before me, the subscriber,
a person authorized to take oaths in the State of Wisconsin , personally appeared
John R. Johnson who, being duly sworn on his/her/their oath, deposed and made proof to
my satisfaction that he/she/they is/are the person(s) named in the within instrument; and I, having fIrst made
known to himlher/them the contents thereof, he/she/they did acknowledge that he/she/they signed, sealed
and delivered the same as his/her/their voluntary act and deed for the purposes therein contained.
Notary Public
My Commission Expires:
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Market: Central Region - IUWI
Cell Site FA Code: 10080385
Cell Site Number: WIll59
Cell Site Name: Muskego Water Tank
EXHIBIT A
Cell Site name & number: Muskego Water Tank
Leasehold Address: W189 S8235 Mercury Drive, Muskego, WI 53150
Landlord name: City of Muskego
Cingular name on lease Telecorp Realty, LLC
The Transferred Assets are the items described and/or depicted below:
1. Antennas, and any associated mounting brackets,
2. Coax cable, and any associated fasteners, coax trays, or cable trays,
3. Equipment platform, and any associated structural members or any associated structural support,
4. Shelter and any associated structural support and conduit/cabling that may have been installed for the
purpose of telco or telephone or electrical power, and
5. Any type ofHVAC unit associated with the operation of this cell site, if applicable.
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Market: Central Region - IUWI
Cell Site FA Code: 10080385
EXHIBITB
Cell Site name & number: Muskego Water Tank
Cell Site Number: WIll59
Cell Site Name: Muskego Water Tank
Leasehold Address: Wl89 S8235 Mercury Drive, Muskego, WI 53150
Landlord name: City of Muskego
Cingular name on lease Telecorp Realty, LLC
By execution of this Exhibit B to the Agreement of which this is part, Owner acknowledges and agrees that
Cingular has met its removal obligations under the Agreement and Owner accepts the Premises in their
current condition with the Transferred Assets remaining at the Premises. Owner acknowledges that
Cingular's work at the Premises is complete and to its satisfaction and that Cingular has met the terms and
conditions of the Agreement.
LANDLORD: City of Muskego
By:
Print Name: John R. ,Johnson
Its: Mayor
Date:
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Market: Central Region - IUWI
Cell Site FA Code: 10080385
Cell Site Number: WII159
Cell Site Name: Muskego Water Tank
EXHIBIT C
TERMINATION OF MEMORANDUM OF LEASE
Prepared by:
Riley and Associates
7600 County Line Road
Burr Ridge, Illinois 60521
(630) 789-1900 Main Number
Return to:
Riley and Associates
7600 County Line Road
Burr Ridge, Illinois 60521
(630) 789-1900 Main Number
Attn: Leasing Department
State: Wisconsin
County: Waukesha
APN: MSKC 2225.999.001
THIS TERMINATION OF MEMORANDUM OF LEASE ("Termination") is made as of
this
_
day of ,2007 by and between New Cingular Wireless PCS, LLC, (as successor in
interest to AT&T Wireless PCS, Inc., a Delaware corporation, by and through its agent AT&T Wireless
Services, Inc., a Delaware corporation, or one of its subsidiaries or affiliates) (hereinafter "Cingular") and
the undersigned owners ofW189 S8235 Mercury Drive, Muskego, WI; the City of Muskego, a Wisconsin
municipal corporation (hereinafter "Owner").
BACKGROUND
On June 13,2001 Owner and Cingular entered into a certain License Agreement ("Lease")
with respect to certain real property located at W189 S8235 Mercury Drive, Muskego, WI ("Premises"), as
more particularly described in a Memorandum of [~tjon and] Lease ("Memorandum") that was recorded
in the Clerk's Office of Waukesha County, on / A ,2001 at Liber
_
of Deeds, Page
Owner and Cingular enter into this Termination to evidence the termination, cancellation and discharge of
the Lease and Memorandum.
Cingular does hereby REMISE and RELEASE unto Owner all the real estate described in
the attached Exhibit A.
TO HAVE AND TO HOLD the same, together with all rights and appurtenances
thereto belonging free, clear and discharged from the encumbrance of said Memorandum.
NOW, THEREFORE, intending to be legally bound, Owner and Cingular hereby declare, for
themselves and all who succeed to their respective interests, that the Memorandum is terminated, canceled
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Market: Central Region - IUWI
Cell Site FA Code: 10080385
Cell Site Number: WII159
Cell Site Name: Muskego Water Tank
and discharged and is of no further force or effect. This Termination is effective upon submission for filing
at the Clerk's Office of the County in which the Premises are located.
IN WITNESS WHEREOF, Owner and Cingular have executed this Termination as of the
date first above written.
CINGULAR: Ne Cingular Wireless PCS, LLC,
By: ,fð Û .. f2:;{)
Print Name: Scott A. Root
Its: Real Estate and Construction Manager, IL/WI
Date: 2- -7- J - () -7
OWNER: (Entity full legal name)
By:
Print Name:
Its:
Date:
John R. Johnson
Mayor
TENANT ACKNOWLEDGEMENT
STATE OF ILLINOIS)
COUNTY OF C~-
) ss:
)
On the ..:z ( day of fEiJ , 2007, before personally appeared Scott A. Root, and
acknowledged under oath that he is the Real Estate and Con ction Manager, IL/WI of New Cingular
Wireless LLC, successor in interest to AT&T Wireless S ices, Inc., the Delaware corporation that
executed the within and foregoing instrument (the "Corpora. n"), and a knowledged the sa. instrument to
be the free and voluntary act and deed of the Corp ati and on 0 stated th e a~ authorized to
execute said instrument on behalf of the Corporatio
My Commission Expires: lol!}(d(
STATE OF WI
COUNTY OF Waukesha
OWNER ACKNOWLEDGMENT..
)
) ss:
)
BE IT REMEMBERED, that on this
_
day of , 2007 before me, the subscriber,
a person authorized to take oaths in the State of Wisconsin , personally appeared
John R. Johnson who, being duly sworn on his/her/their oath, deposed and made proof to
my satisfaction that he/she/they is/are the person(s) named in the within instrument; and I, having first made
known to him/her/them the contents thereof, he/she/they did acknowledge that he/she/they signed, sealed
and delivered the same as his/her/their voluntary act and deed for the purposes therein contained.
Notary Public
My Commission Expires:
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