HomeMy WebLinkAbout2012-05-07-Resolutions 12-108_Water Tower - Lease Agr - WDMTHE CITY OF WAUKEE,IOWA
RESOLUTION 12-108
APPROVING A TOWER LEASE WITH OPTION AGREEMENT
(CITY OF WAUKEE/98TH STREET SITE)BETWEEN THE CITY OF
WEST DES MOINES AND THE CITY OF WAUKEE
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE,IOWA
WHEREAS,the City of Waukee,Iowa is a duly organized muuicipality within Dallas County;
AND,
WHEREAS,as part of the City of Waukee AMI Project,a collection antenna must be installed
on the water tower shared among the Cities of Clive,Waukee and West Des Moines,the shared
use of which was approved by the Waukee City Council on November 17,2003 (Resolution #03-
221);AND,
WHEREAS,the City of West Des Moines Water Works has submitted a Tower Lease with
Option Agreement,attached hereto as Exhibit A;AND,
WHEREAS,the Waukee City Council has reviewed the agreement and finds it satisfactory.
NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this
7'h day of May,2012,that the Tower Lease with Option Agreement (City of Waukee/98th Street
Site)between the City of West Des Moines and the City of Waukee is hereby approved.
Attest:
.ooistra,City Administrator/Clerk
ROLL CALL VOTE
Shane Blanchard
Dan Dutcher
Casey L.Harvey
Shelly Hughes
Mike Watts
AYE
X
X
X
X
X
NAY ABSENT ABSTAIN
EXHIBIT A
Preparer Information:
West Des Moines Waler Works
4200 Mills Civic Parkway,Suite 1 D
West Des Moines,IA 50265
(515)222-3510
waterworks@wdmww.com
Tower Lease with Option
City of Waukee/98th Street Site]
THIS TOWER LEASE WITH OPTION AGREEMENT (this "Lease")is effective
this date:May::30,2012 ,between,the City of West Des Moines,Iowa,a
Municipal Corporation,by the Board of Trustees of the West Des Moines Municipal
Water Works ("Landlord"),and the City of Waukee,("Tenant").
1.Option to Lease
(a)In consideration of the payment of one dollar ($1.00)and other
good and valuable consideration paid by Tenant to Landlord,the receipt and sufficiency
of which is hereby acknowledged by Landlord,Landlord hereby grants to Tenant an
option to lease the use of a portion of the water storage facility and real property
described in attached Exhibit "A"(the "Property"),on the terms and conditions set forth
herein (the "Option").The Option shall be for an initial term of 12 months,commencing
on the date hereof and ending at 12:00 AM on Three Hundred Sixty Fifth (365th)day
thereafter,(the "Option Period").The Option Period may be extended by Tenant for an
additional 12 months upon written notice to Landlord and a one time non-refundable
payment of the sum of One Thousand Dollars ($1,000.00)("Additional Option Fee")at
any time prior to the end of the Option Period.
(b)At such time,if ever,that Tenant determines to exercise this option,
tenant shall pay to Landlord a one time non-refundable payment of Seven Hundred
Twenty Nine Dollars ($729.00).This deposit shall be applied toward the first full month
of rent.
(c)During the Option Period or the extension thereof,and during the
term of this Lease,Landlord agrees to cooperate with Tenant in obtaining,at Tenant's
expense,all licenses and permits or authorizations required for Tenant's use of the
Premises from all applicable government and/or reguiatory entities (the "Governmental
Approvals")including appointing Tenant as agent for all conditional-use permit
applications and zoning change applications.Each such application shall be subject to
Landlord's prior review and approval which may be granted or withheld in Landlord's
sole discretion.Landlord agrees to cooperate with and to allow Tenant,at no cost to
Landlord,to obtain a title report,zoning approvals and variances,conditional-use
permits,perform surveys,soil tests,and other engineering procedures or environmental
investigations on,under and over the Property,necessary to determine that Tenant's
use of the Premises will be compatible with Tenant's engineering specifications,system
design,operations and Governmental Approvals.Tenant shall conduct such activities
so as to avoid interference with Landlord's operations and shall immediately cease any
and all such activities at Landlord's request.During the Option Period and the
extension thereof,Tenant may exercise the Option by so notifying Landlord in writing,at
Landlord's address in accordance with Section 13 hereof.
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(d)If Tenant exercises the Option,then,subject to the following terms
and conditions,Landlord hereby leases to Tenant (the "Lease")the use of that portion of
the water storage facility and Property,together with easements for access and utilities,
described and depicted on attached "Exhibit B"(collectively,the "Premises").
The Premises,located on the 98th Street Elevated Water Storage Facility,West Des
Moines,Dallas County,Iowa 50266.
2.Term.The initial term of this Lease shall be five years (the "Term")
commencing on the exercise of Tenant's option,(the "Commencement Date"),and
terminating at Midnight on the last day of the month in which the fifth anniversary of the
Commencement Date shall have occurred.
3.Permitted Use.The Premises may be used by Tenant for the
transmission and reception of wireless communication signals and for the construction,
maintenance,repair or replacement or upgrading of related facilities,antennas,
equipment and related activities.Tenant shall obtain,at Tenant's expense,all
Governmental Approvals and may (prior to or after the Commencement Date)obtain a
title report,perform environmental and other surveys,soil tests,and other engineering
procedures on,under and over the Property,necessary to determine that Tenant's use
of the Premises will be compatible with Tenant's engineering specifications,system
design,operations and Governmental Approvals.Tenant shall conduct all such
activities so as to avoid interference with Landlord's operations and shall immediately
cease any and all such activities at Landlord's written request if in Landlord's
reasonable judgment,the activities interfere with Landlord's operations.Landlord
agrees to reasonably cooperate with Tenant (at no cost to Landlord),where required,to
perform such procedures or obtain Governmental Approvals.If necessary,Tenant has
the right to immediately terminate this Lease with no further obligations except removal
of its equipment,restoration of the premises and property,as of the Commencement
Date of this Lease,and payment of the due or delinquent rent to the date of termination
if Tenant notifies Landlord of unacceptable results of any title report,Governmental
Approvals,environmental surveyor soil tests prior to Tenant's installation of the
Antenna Facilities (as defined below)on the Premises.
4.Rent
(a)Tenant shall pay Landlord,as Rent,Seven Hundred TwentyNine
Dollars ($729.00)per month ("Rent").Rent shall be payable in advance beginning on
the Commencement Date for the remainder of the month in which the Commencement
Date falls and for the following month,and thereafter rent will be payable monthly in
advance on the fifth day of each month for the following month to the West Des Moines
Water Works at Landlord's address specified in Section 13 below.For the purpose of
this Lease,all references to "month"shall be deemed to refer to a calendar month.If
the Commencement Date does not fall on the fifth day of the month,then Rent for the
period from the Commencement Date to the last day of the following month shall be
prorated based on the actual number of days remaining in the month from the
Commencement Date.
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(b)If this Lease is terminated at a time other than on the last day of a
month,Rent shall be prorated as of the date of termination for any reason other than a
default by Tenant,and all prepaid Rents shall be refunded to Tenant within thirty (30)
days of such termination.
5.Renewal.Tenant shall have the right to extend this Lease forfive
additional five-year terms ("Renewal Term").Except as provided to the contrary in
Section 6 below,each Renewal Term shall be on the same terms and conditions as set
forth herein,except that Rent shall be increased at the commencement of each
Renewal Term by fifteen percent (15%)from the preceding term or the percentage
increase in the Consumer Price Index ("CP!"),whichever is greater.The CPI shall
mean the "Consumer Price Index for All Urban Consumer,All Cities,All Items
(1984=100)"as published by the United States Department of Labor Statistics,or if such
index shall be discontinued the successor index,or if there be no successor index,such
comparable index as mutually agreed upon by the parties.
This Lease shall automatically renew for each successive Renewal Term
unless Tenant shall notify Landlord,in writing,of Tenant's intention not to renew this
Lease,at least 60 days prior to the expiration of the term or any Renewal Term.
If Tenant shall remain in possession of the Premises at the expiration of
this Lease or any Renewal Term without a written agreement,such tenancy will be
deemed a month-to-month tenancy under the same terms and conditions of this Lease.
6.Appraisals of Market Value of Rent.At the end of the initial term and
at the end of the second renewal term (if any),either Landlord or Tenant may elect to
have the Rent set at a market rate determined in the manner set forth in this Section.
Either party requesting such market rent will notify the other party at least sixty (60)
days prior to the end of either the initial term or the end of the second renewal term,
whichever is applicable.The monthly Rent shall then be determined as follows:
(a)an appraisal of the fair market monthly rental of similar Antenna
Facilities in the Des Moines metropolitan area shall be prepared by a MAl qualified
appraiser selected by Landlord,and a similar appraisal shall be prepared by a MAl
qualified appraiser selected by Tenant.Each party shall pay all costs and expenses for
the appraisal it requests and the parties shall share equally the cost of a third appraiser
if appointed pursuant to sub-section "b,"below.Such appraisals shall be completed
within thirty (30)days of the request.If the higher of such two appraisals in within 105%
of the lower of such two appraisals,the monthly Rent for the following Renewal Term
shall become the average of the two appraisals.The Rent for succeeding Renewal
Terms shall be determined in accordance with Section 5 using as a base the Rent as
determined pursuant to this Section,unless or until another appraisal is accomplished
as described in Section 6.
(b)if the higher of such two appraisals is not within 105%of the lower
appraisal,Landlord and Tenant shall mutually select a third appraiser to appraise the
fair market monthly rental,and the monthly Rent determined by such third appraiser
shall be the monthly Rent for the applicable five-year Renewal Term.The Rent for
succeeding Renewal Terms shall be determined in accordance with Section 5 using as
a base,the Rent as determined pursuant to this Section,unless or until another
appraisal is accomplished as described in Section 6.
7.Interference.Tenant shall not use the Premises in any way which
interferes with the use of the Property by Landlord,the City of West Des Moines and its
other agencies or boards (collectively,the "City"),or tenants or licensees of Landlord,
with rights to the Property prior to Tenant's use (subject to Tenant's rights under this
Lease,including without limitation,non-interference).Tenant further represents to
Landlord that its proposed use of the Premises shall not interfere with the Landlord's
communications facilities or services,if any,those of the City,which communications
facilities or services are in place as of the date hereof or which may be constructed from
time to time during the term of this Lease,or with Landlord's tenant's communications
facilities or services,whose rights are previous to Tenant's rights.Similarly,Landlord
shall not use,nor shall Landlord permit its tenants,licensees,employees,invitees or
agents or any other third party to use any portion of Landlord's property in any way
which unreasonably interferes with the operations of Tenant.Such interference shall be
deemed a material breach by the interfering party,who shall,upon written notice from
the other,be responsible for terminating said interference
In the event Tenant's interference with Landlord's or City's use does not cease promptly,
the parties acknowledge that continuing interference may cause irreparable injury and,
therefore,Landlord shall have the right,in addition to any other rights that it may have at
law or equity,to bring a court action to enjoin such interference or to terminate this
Lease immediately upon written notice.If Landlord's or any third party interference with
Tenant's use does not cease within seventy-two (72)hours after receipt of notice,
Tenant's sole remedy with respect to Landlord shall be to terminate this Lease,without
penalty,with refund of rent paid after notice of the interference.
Tenant's right to have communication facilities on the Premises is nonexclusive.The
Landlord shall retain the right to lease space to other communications companies,
provided that future communications companies do not unreasonably interfere with
Tenant's use.
8.Improvements;Utilities;Access.
(a)Tenant shall have the right,at its expense,to erect and maintain
Tenant's Antenna Facilities which shall be Initially configured generally as set forth in
Exhibit "B".Landlord shall have the authority to review and approve the detailed plans
and specifications,including installation plans and schedules,for the Antenna Facilities.
Such approval shall not be unreasonably withheld,conditioned or delayed.Tenant shall
have the right to replace or upgrade the Antenna Facilities at any time during the term of
this Lease.Upon completion of the initial installation,Tenant shall provide Landlord
with "as built"drawings showing that that the Initial Installation was accomplished in
compliance with Exhibit "8".Tenant shall cause all construction to occur lien-free and in
compliance with all applicable laws and ordinances.The Antenna Facilities shall remain
the exclusive property of Tenant.Tenant shall use,maintain and keep its Antenna
Facilities in a commercially reasonable manner during the time covered by this lease.
Tenant,at its sole expense,shall promptly remove the Antenna Facilities upon
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termination of this Lease and shall restore the Property in the same manner as of the
Commencement Date of this Lease,reasonable wear and tear expected.The
configuration of any upgrades to the Premises shall be subject to the Landlord's review
and approval,which approval shall not be unreasonably withheld,conditioned or
delayed.Tenant shall repair,at its expense,any damage to Landlord's property,during
the installation,maintenance or operation of the Antenna Facilities.The Tenant shall
operate the Antenna Facilities in accordance with all FCC rules and regulations.
Landlord shall have the right to remove the Antenna Facilities at the termination of this
Lease,if Tenant fails to remove the Antenna Facilities within sixty (60)days after the
termination of this Lease,and Tenant shall pay any such actual and documented
removal costs.
(b)Tenant,at its expense,may use appropriate means of restricting
access to the Antenna Facilities,including,the construction of a fence;subject to
Landlord's approval and approval by applicable regulatory agencies.
(c)Tenant shall pay any additional utilities charges due to Tenant's
use.Tenant shall have the right to install utilities,at Tenant's expense,and to improve
the present utilities on the Premises.Tenant agrees to paint the Antenna Facilities,the
color of which shall be approved by Landlord.Upon termination of this Lease,Tenant
shall be required to repair the site and restore the surface of the structure where the
Antenna Facilities were attached to its original condition or as near to its original
condition as is reasonably practicable as of the Commencement Date of this Lease,
reasonable wear and tear excepted.Tenant's utilities shall be separately metered.
(d)As partial consideration for Rent paid under this Lease,Landlord
hereby grants Tenant an easement ("Easement")for ingress,egress,and access
(including access as described in Section 1)to the Property and Premises adequate to
service the Premises and the Antenna Facilities at all times during the term of this
Lease or any Renewal Term.Upon prior written notice,Landlord shall have the right,at
Landlord's expense,to relocate the Easement to Tenant,provided such new location
shall not materially interfere with Tenant's operations.Any Easement provided shall
have the same term as this Lease.
(e)Tenant will be issued two Access Cards and shall have 24-hours-
per-day,7-days-per-week access to the Premises at all times during the term of this
Lease and any Renewal Term provided.
(f)If Landlord should need to sandblast,paint or otherwise maintain
the water storage facility,it shall coordinate such efforts with Tenant and cooperate with
Tenant so that it does not cause undue interference with Tenant's Antenna Facilities.
(g)Tenant shall erect and maintain an electrical metering facility
meeting the written approval of Landlord.The cost of such metering facility shall be
borne by Tenant.
The metering facility shall become property of Landlord upon termination
of this Lease.
(h)In the event installation of the Metering Facility shall cause
Landlord to relocate,reconstruct or modify any portion of its water storage facility to
maintain the current usefulness of such portion or to comply with laws or governmental
regulations,including but not limited to obstruction lighting,vents,personnel access
facilities,or cathodic protection system,Tenant shall pay for such reasonable costs.
(i)Unless approved otherwise by Landlord,connections to the water
storage facility shall be made by welding,using welders who are certified for such work,
and all areas of the water storage facility disturbed by such operations shall,at Tenant's
cost,be sandblasted and painted to Landiord's specifications.
9.Termination.Except as otherwise provided herein,this Lease may be
terminated,without any penalty or further liability as follows:
(a)upon thirty (30)days written notice by Landlord for failure to cure a
material default for payment of amounts due under this Lease within that 30-day period;
(b)upon thirty (30)days written notice by either party if the other party
defaults and fails to cure such default within that 30-day period,or such longer period as
may be required to diligently complete a cure commenced within that 30-day period;
(c)upon ninety (90)days written notice by Tenant,if it is unable to
obtain,maintain,or otherwise forfeits or cancels any license,permit or Governmental
Approval necessary to the construction and/or operation of the Antenna Facilities or
Tenant's business;
(d)upon ninety (90)days written notice by Tenant if the Premises are
or become unacceptable under Tenant's design or engineering specifications for its
Antenna Facilities or the communications system to which the Antenna Facilities
belong;
(e)immediately upon written notice by Tenant if the Premises of the
Antenna Facilities are destroyed or damaged so as in Tenant's reasonable judgment to
substantially and adversely affect the effective use of the Antenna Facilities.In such
event,all rights and obligations of the parties shall cease as of the date of the damage
or destruction,and Tenant shall be entitled to the reimbursement of any Rent prepaid by
Tenant.If Tenant elects to continue this Lease,then all Rent shall abate until the
Premises and/or Antenna Facilities are restored to the condition existing immediately
prior to such damage or destruction or for 60 days,whichever is the shorter period;
(f)at the time title of the Property transfers to a condemning authority,
pursuant to a taking of all or a portion of the Property,sufficient in Tenant's
determination to render the Premises unsuitable for Tenant's use.Landlord and Tenant
shall each be entitled to pursue their own separate awards with respect to such taking.
Sale of all or part of the Property to a purchaser with the power of eminent domain in
the face of the exercise of the power,shall be treated as a taking by condemnation.
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(g)Landlord shall have the right to terminate this Lease immediately if
the water storage facility is destroyed by casualty or a disaster,such as,but not limited
to,fire or tornado.
(h)Landlord shall also have the right to terminate this Lease within
sixty (60)days written notice to Tenant,if (I)the Landlord discontinues the use of the
water storage facility for any reason;(ll)an independent engineer determines the water
storage facility to be structurally unsound;(iii)Tenant's use unreasonably interferes with
the Landlord's or City's equipment or property at the site;(iv)Tenant is negligent in
maintaining or repairing its Antenna Facilities equipment at the site;or (v)if Tenant
discontinues use of the equipment for a period of ninety (90)days.
(i)upon thirty (30)days written notice to Tenant,except in the event of
a public emergency where such notice is impracticable,Landlord shall be able to
temporarily interrupt operation of the Antenna Facilities In the event of an immediate
threat to public health and/or safety,as discerned by an independent third party or by
arbitration or by judgment or by a governmental agency decision.
0)after the initial five-year term of this Lease,upon one hundred
eighty (180)days written notice to Tenant,should Landlord determine that the use of
the Premises by Tenant is incompatible with Landlord's purposes.
10.Taxes.Tenant shall pay all fees,assessments,personal property
taxes and real property taxes assessed on,or any portion of such taxes directly
attributable to the Antenna Facilities owned by Tenant.Landlord shall pay when due all
other real property taxes and all other fees and assessments attributable to the
Property.In the event that Landlord falls to pay said real property taxes,then Tenant
shall have the right,but not the obligation,to pay said taxes and to deduct them from
Rent amounts due under this Lease.
11.Insurance and Subrogation.
(a)Tenant will provide Commercial General Liability Insurance in an
aggregate amount of $5,000,000.
(b)Each party will keep in force for the duration of the Lease a policy
covering damages to its property at the Premises.The amount of coverage shall be
sufficient to replace the damaged property,loss of use and comply with any ordinance
or law requirements.
(c)Landlord and Tenant hereby mutually release each other (and their
successors or assigns)from liability and waive all right of recovery against the other for
any loss or damage covered by their respective first party property insurance policies for
all perils insured thereunder.In the event of such insured loss,neither party's insurance
company shall have a subrogated claim against the other.
12.Hold Harmless.Tenant agrees to defend,indemnify and hold Landlord
harmless from claims,loss,damages,judgments and expenses of any kind,including
attorneys'fees arising directly or indirectly from the installation,use,maintenance,
repair or removal of the Antenna Facilities,except for claims arising from the negligence
or intentional acts of Landlord,its employees,agents or independent contractors.
13.Notices.All notices,requests,demands and other communications
hereunder shall be in writing and shall be deemed given if personally delivered or
mailed,certified mail,return receipt requested,or sent by overnight carrier to the
following addresses:
If to Tenant,to:
City Administrator
City of Waukee
230 W.Hickman Rd.
Waukee,IA 50263
Telephone:515-987-4522
FAX:515-987-1845
Email:bdeets@waukee.org
If to Landlord,to:
The Board of Trustees
West Des Moines Water Works
4200 Mills Civic Parkway,Suite 1D
West Des Moines,IA 50265
Telephone:515-222-3510
FAX:515-222-3378
Email:waterworks@wdmww.com
14.Quiet Enjoyment Title and Authority.Landlord covenants and warrants to
Tenant that (i)Landlord has full right,power and authority to execute this Lease;(ii)it
has good and unencumbered title to the Premises free and clear of any liens or
mortgages,except those disclosed to Tenant which will not interfere with Tenant's rights
to or use of the Premises;(iii)execution and performance of this Lease will not violate
any laws,ordinances,covenants,or the provisions of any mortgage,lease,or other
agreement binding on Landlord;and (iv)that no additional ground lease or easement is
required from any third party for access to the Premises.
Landlord covenants that at all times during the term of this Lease,except
as provided in this Lease,Tenant's quiet enjoyment of the Premises or any part thereof
shall not be disturbed as long as Tenant is not in default beyond any applicable grace or
cu re period.
15.Environmental Laws.Tenant represents,warrants and agrees that it
will conduct its activities on the Property in compliance with all applicable Environmental
Laws (as defined in "0").Landlord represents,warrants and agrees that it has in the
past and will in the future conduct its activities on the Property in compliance with all
applicable Environmental Laws and that the Property is free of Hazardous Substances
(as defined in Exhibit "0")as of the date of this Lease.
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Landlord shall be responsible for,and shall promptly conduct any
investigation and remediation as required by any Environmental Laws or common law,
of all spills or other releases of Hazardous Substances,not caused by Tenant,that have
occurred or which may occur on the Property.Tenant agrees to defend,indemnify and
hold Landlord harmless from and against any and all claims,causes of action,demands
and liability including,but not limited to,damages,costs,expenses,assessments,
penalties,fines,loses,judgments and attorney's fees that Landlord may suffer due to
the existence or discovery of any Hazardous Substance on the Property or the
migration of any Hazardous Substance to other properties or release into the
environment arising from Tenant's activities on the Property.Tenant's obligation under
this section shall survive the expiration or termination of this Lease.
Landlord agrees to defend,indemnify and hold Tenant harmless from and
against any and all claims,causes of action,demands and liability including,but not
limited to,damages,costs,expenses,assessments,penalties,fines,loses,judgments
and attorney's fees that Tenant may suffer due to the existence or discovery of any
Hazardous Substance on the Property or the migration of any Hazardous Substance to
other properties or release into the environment arising from Landlord's activities during
this Lease and from all activities on the Property prior to the commencement of this
Lease.
16.Assignment and Subleasing.
Tenant may assign this Lease upon written approval of Landlord,which
approval shall not unreasonably be delayed or withheld,to any person controlling,
controlled by,or under common control with Tenant,or any person or entity that,after
first receiving FCC or state regulatory agency approvals,acquires Tenant's radio
communications business and assumes all obligations of Tenant under this Lease.
Upon such assignment Tenant shall be relieved of all liabilities and obligations
hereunder relating to matters first arising after the date of such assignment,and
Landlord shall look solely to the assignee for performance under this Lease and all
obligations incurred thereafter.Tenant may not sublease the Premises or otherwise
assign this Lease,except upon written approval of Landlord,which approval shall not
unreasonably be delayed,conditioned or withheld.
Additionally,Tenant may,upon written notice to Landlord,mortgage or grant
a security interest in this Lease and the Antenna Facilities,and may assign this Lease
and the Antenna Facilities to any mortgagees or holders of security interests,including
their successors or assigns,(hereinafter collectively referred to as "Mortgagees"),
provided such Mortgagees agree to be bound by the terms and provisions of this Lease.
In such event,Landlord shall execute such consent to leasehold financing as may
reasonably be required by Mortgagees.Landlord agrees to notify Tenant and Tenant's
Mortgagees simultaneously of any default by Tenant and to give Mortgagees the same
right to cure any default as Tenant or to remove any property of Tenant or Mortgagee
located on the Premises,subject to the repair provisions applicable to Tenant under
paragraph 8(c),above,except that the cure period for any Mortgagee shall not be less
than thirty (30)days after receipt of the default notice,as provided in Section 9 of this
Lease.All such notices to Mortgagees shall be sent to Mortgagees at the address
specified by Tenant upon entering into a financing agreement.Failure by Landlord to
give a Mortgagee such notice shall not diminish Landlord's rights against Tenant,but
shall preserve all rights of Mortgagee to cure any default and to remove any property of
Tenant or Mortgagee located on the Premises as provided in Section 1B of this Lease.
17.Successors and Assigns.This Lease shall run with the Property,and
shall be binding upon and inure to the benefit of the parties,their respective successors,
personal representatives and assigns,provided their interests in the Property were
created in accordance with the terms of this Lease.
18.Subordination of Landlord's Lien.Landlord hereby subordinates to the first
Mortgagee any and all lien rights it may have,statutory or otherwise,concerning the
Antenna Facilities or any portion thereof which shall be deemed personal property for
the purposes of this Lease,regardless of whether or not the same is deemed real or
personal property under applicabie laws,and Landlord gives Mortgagee the right to
remove all or any portion of the same from time to time,whether before or after a
default under this Lease,in Mortgagee's sole discretion and without Landlord's consent.
In the event the Property is encumbered by a mortgage as of the date of this Lease,the
Lessor shall request that the holder of each such mortgage execute a non-disturbance
agreement,to be prepared by Lessee,and cooperate with Lessee toward such end to
the extent that such cooperation does not cause Lessor additional financial liability or
expense.
19.Miscellaneous.
(a)The substantially prevailing party in any litigation arising hereunder
shall be entitled to its reasonable attorneys'fees and court costs including appeals,if
any.
(b)Each party agrees to furnish to the other,within ten (10)days after
request,such truthful estoppel information as the other may reasonably request.
(c)This Lease constitutes the entire agreement and the understanding
of the parties,and supersedes all offers,negotiations and other agreements.There are
no representations or misunderstandings of any kind not set forth.Any amendments to
this Lease must be in writing and executed by both parties.
(d)If either party is represented by a real estate broker in this
transaction,that party shall be fully responsible for any fee due such broker,and shall
hold the other harmless from any claims for commission by such broker.
(e)Each party agrees to cooperate with the other in executing any
documents (including a Memorandum of Lease substantially in the form as attached in
Exhibit HE")necessary to protect its rights or use of the Premises.The Memorandum of
Lease may be recorded in place of this Lease,by either party.
(f)
State of Iowa.
This Lease shall be construed in accordance with the laws of the
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(g)If any term of this Lease Is found to be void or invalid,such
invalidity shall not affect the remaining terms of this Lease,which shall continue in full
force and effect.The parties intend that the provisions of this Lease be enforced to the
fullest extent permitted by applicable law.Accordingly,the parties shall agree that if any
provisions are deemed not enforceable,they shall be deemed modified to the extent
necessary to make them enforceable.
(h)The persons who have executed this Lease represent and warrant
that they are duly authorized to execute this Lease in their individual or representative
capacity as indicated.
(I)The submission of this document for examination does not
constitute any offer to lease or a reservation of or option for the Premises and shall
become effective only upon execution by both Tenant and Landlord.
OJ This Lease may be executed in any number of counterpart copies,
each of which shall be deemed an original,but all of which together shall constitute a
single instrument.
(k)The parties understand and acknowledge that Exhibit "An (the legal
description of the Property),Exhibit "8"(the Premises location within the Property)and
Exhibit "C"(Antenna Layout)may be attached to the Lease in preliminary form.
Accordingly,the parties agree that upon preparation of final,more complete exhibits,
Exhibits "A","8"and/or "C",as the case may be,which may have been attached hereto
in preliminary form,may be replaced with such final,more complete exhibit(s)as may
be mutually agreed by the Parties.
(I)No modification,amendment,waiver or release of any provision of
this Lease or of any right,obligation,claim or cause of action arising hereunder shall be
valid or binding for any purpose whatsoever unless in writing and duly executed by the
party against whom the same is sought to be asserted.
(Signatures on next page)
-11 -
IN WITNESS WHEREOF,Landlord and Tenant have caused this Lease to be
duly executed and delivered as of the 30th day of
May ,20 12 (the "Execution Date").
LANDLORD:
City of West Des Moines,Iowa,a Municipal Corporation,
by the 8.·arc of Trustees of the West Des Moines Municipal Water Works...-
BY:·.,;L~=:,A~c4~::ru~~rU-Karen Novak Swalwell
Chair
By:r(tl -tv,(r;f~
{lmlICfW.Stevens
General Manager &Secretary
Tax 10 Number:42-6024952
TENANT:
By:",
4of:rd~~~]~~hfM:iMl:;k.~i~e]Xffm;k·KtA1!f4
Tax 10 Number:[Tenant's Tax ID #]'1;~IllOO\Q(gOS=
[NOTARY CERTfFICA TfONS NEXT PAGEl
-12-
STATE OF IOWA
:ss
COUNTY OF Dallas
On this date:May 30,201:?before me,the undersigned,a Notary Public in and
for the said State,personally appeared Karen Novak Swalwell and Jerald W.Stevens,
to me personally known,who being by me duiy sworn,did say that they are the Chair
and General Manager,respectively,of the corporation,executing the within and
foregoing instrument to which this is attached,that no seal has been procured by the
said corporation;that the instrument was signed on behalf of the corporation by
authority of its Board of Directors;and that Karen Novak Swalwell and Jerald W.
Stevens,as officers,acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of the corporation,by it and by them voluntarily executed.
~~4/UJ~
iJ..EARLENEJ.OWENSt,l'Commission 1'1_166117
••My Commission E><pl"'"o~AUBuot,12,2013
STATE OF-,,:r:,,"dW~q!---_
:ss
CO UNTY OF j)",,(/''-'..:1 tl,,-,,~,---__
On this date M~1J.11Jt)fJ ,before me,the undersigned,a Notary Public in
and for the said State,p&rsonally appeared [First Private Entity's Officer's Name
u,Mtilllll f.P4gvil.,and [Second Priv£lte Entity's Officer's Name]j,,""I,..,.Iif4,to
me personally known,who,being by me duly sworn,did say that [he/she~
----,-c as the authorized representative[add ~for plural],,of[Tertant';>.
Name]1MCtthLb€w,a.uW "a [Tenant's Type of Entlty]I4IYI'lI'iOOI O(1:fa#(lIm'Jl1,
executed the foregoing instrument byauthority ofthe [SlmrtTitleof~oveffilila Body]
"klf..l otuJttl,tKJL,and that [he/she/~:J ,",as such offlCer[add (:j)for
plutal:]",'aCknowledged execution of the instrul11ent Q.be the voluntary act and
deed of th~~nant's Type of Entityr~1 ,tjj.,Itl,.tla 1.4 rlPl,by it and by
[him/her!t§n1J1 voluntarily exe ted.
ri~".FieBECCA-I).ScHum~~Comml~$lon Numbe"7164%••My Comml,.lon EJ(pil~.
ow 'Mny 13,<(1M
.13 .
EXHIBIT "A"
Legal description of the Property:
A parcel of land in and forming a part of GOVERNMENT LOT 3 and GOVERNMENT
LOT 4,Section 3,Township 78 North,Range 26 West of the 5th P.M.West
Des Moines,Dallas County,Iowa,more particularly described as follows:
Commencing at the Southwest Corner of said GOVERNMENT LOT 3;thence N82
25'42"E along the South line of said Government Lot 3,a distance of
129.93 feet to the Point of Beginning;thence N82 25'42"E along the South
line of said GOVERNMENT LOT 3,a distance of 790.00 feet to a point along
the South Right-of-Way line of the Union Pacific Railroad;thence N64
03'40"W along the South Right-of-Way line ofthe Union Pacific Railroad,a
distance of 1326.97 feet to a point on the East Right-of-Way line of Waco
Place;thence S01 08'09"W along the East Right-of-Way line of Waco Piace,
a distance of 44.06 feet;thence S64 03'40E,a distance of 478.90 feet,
thence S02 36'17"W,a distance of 431.44 feet to the Point of Beginning,
containing 4.68 acres more or less,subject to all easements and
restrictions of record.
-14 -
EXHIBIT "B"
Property:.Within thefPremlsssDescription0
15
Exhibit "e"
Antenna Layout
r,rJ-<N,,1"+"fl'<?
0""'"__m......"~~~
16
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",,7i"-""~1=
m)'1Il;:£•
fl:!mitttt~,
.....""llt~~~
(~"'"
~A SCREENDEl.
EXHIBIT "0"
As used in this Lease,"Environmental Laws"means all federal,state and local
environmental laws,rules,regulations,ordinances,judicial or administrative decrees,
orders,decisions,authorizations or permits,including,but not limited to,the Resource
Conservation and Recovery Act,42 U.S.C.§§6901,et seq.,the Clean Air Act,42
U.S.C.§§7401,et seq.,the Federal Water Pollution Control Act,33 U.S.C.§§1251,et
seq.,the Emergency Planning and Community Right to Know Act,42 U.S.C.§§1101,
et seq.,the Comprehensive Environmentai Response,Compensation and Liability Act,
42 U.S.C.§§9601,et seq.,the Toxic Substances Control Act,15 U.S.C.§§2601,et
seq.,the Oil Pollution Control Act,33 U.S.C.§§2701,et seq.,the Hazardous Materials
Transportation Act,49 U.S.C.§§1801,et seq.,the Safe Drinking Water Act,42 U.S.C.
§§300f,et seq.,and state laws,or any other comparable local,state or federal statute
or ordinance pertaining to the environment or natural resources and all regulations
pertaining thereto.
As used in this Lease,"Hazardous Substance"means any hazardous
substances as defined by the Comprehensive Environmental Response,Compensation
and Liability Act,as amended from time to time;any hazardous waste as defined by the
Resource Conservation and Recovery Act of 1976,as amended from time to time;any
and all material or substance defined as hazardous pursuant to any federal,state or
local laws or regulations or order;and any substance which is or becomes regulated by
any federal,state or local governmental authority;any oil,petroleum products and their
by-products.
17
EXHIBIT "E"
Memorandum of Lease
To the Tower Lease with Option (City of Waukee/98th Street Site)with an
Execution Date of the 30th day at May ,2012,between the West Des
Moines Municipal Water Works,Landlord,and the City of Waukee,Tenant.
After recording,please return to:
West Des Moines Water Works
4200 Mills Civic Parkway,Suite 10
West Des Moines,IA 50265
Telephone:515-222-3510
FAX:515-222-3378
waterworks@wdmww.com
Memorandum of Lease between the West Des Moines Water Works,("Landlord")and
City of Waukee,("Tenant")
A Tower Lease with Option (City of Waukee/98th Street Site)between West Des
Moines Water Works,("Landlord")and the City of Waukee,("Tenant")was made
regarding the following premises:
See attached Exhibit A
The date of execution of the Tower Lease with Option (City of Waukee/98th
Street Site)was the 30th day of May ,2012.Subject Lease is for a term
of five (5)years and will commence on the Execution Date (a/k/a the "Commencement
Date")and shall terminate at midnight on the last day of the month in which the 5th
anniversary of the Commencement Date shall have occurred.Tenant shall have the
right to extend this Lease for five additional five-year terms.
18
IN WITNESS WHEREOF,the parties hereto have respectively executed this
memorandum on the ~~day of May ,2012.
LANDLORD:
CITY OF WEST DES MOINES,IOWA
A MUNICIPAL CORPORATION
BY THE BOARD OF TRUSTEES OF THE
WEST DES MOINES WATER WORKS
By:L~~
/Karen Novak Swalwell
Chair
By:~«Ste~~<Yi::-~~-
General Manager &Secretary
Tax ID Number:42-6024956
TENANT:
The City ofll,Vaukee
I
By:y
illiarn F.Peard
Mayor
By:
IfreyL.I<ooistra
~ity Administrator/Clerk
Tax ID Number:42-6006605
[NOTARY CERTlFfCA TlONS NEXT PAGE]
19
STATE OF IOWA
:ss
COUNTY OF Dallas
On this dateMay 30,2012 before me,the undersigned,a Notary Public in and
for the said State,personally appeared Karen Novak Swalwell and Jerald W.Stevens,
to me personally known,who being by me duly sworn,did say that they are the Chair
and General Manager,respectively,of the corporation,executing the within and
foregoing instrument to which this is attached,that no seal has been procured by the
said corporation;that the instrument was signed on behalf of the corporation by
authority of its Board of Directors:and that Karen Novak Swalwell and Jerald W.
Stevens,as officers,acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of the corporation,by it and by them voluntarily executed.
~4t qct2~ftq
STATE OF IOWA
EARLENE J.OWENS
Commission Number 166117
My Commission Expires
August 12,2013
:ss
COUNTY OF DALLAS
On this date tla~J!~~,before me,the undersigned,a Notary Public in
and for the said State,pe sonally appeared William F.Peard,and Jeffrey L.KOOistra,to
me personally known,who,being by me duly sworn,did say that they as the authorized
representatives of the'City of Waukee,a municipal organization,executed the foregoing
instrument by authority of the City of Waukee,and that they as such officers
acknowledged execution of the instrument to be the voluntary act and deed of the
municipal organization,by it and by them voluntarily executed.
ReBECcA O.SCHUETT
Commission Number 7164~qMyCommlssIQnE'~plr ..
May 13,2014 Notary Public in and for said State.
20
Exhibit "F"
Commencement Date AgreEllllent
This Agreement is made as of this 30th day of May r
2012 between City of West Des Moines,Iowa,a municipal corporation,by the Board of
Trustees of the West Des Moines Municipal Water Works ("Landlord")and The City of
Waukee ("Tenant").
WITNESSETH:
A.WHEREAS,Landlord is the owner of certain property situated in West Des
Moines,Iowa (the "Property").
B.WHEREAS,pursuant to that certain lease dated
Ma'30,2012 (the "Lease"),Landlord leased a portion of the Property
to Tenant (the "Premises"),and Landlord and Tenant agreed to enter into this
Commencement Date Agreement.
NOW,THEREFORE,Landlord and Tenant agree as follows:
1.The Commencement Date (as such term is defined in the Lease)is
May 30 ,2012.
2.The term of the Lease shall expire on May 30
unless the Lease terminates earlier as provided in the Lease.
,2042,
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be
executed the date and year first above written.
LANDLORD:CITY OF WEST DES MOINES,IOWA
A MUNICIPAL CORPORATION
BY THE BOARD OF TRUSTEES OF THE
WEST DES MOINES MUNICIPAL WATER WORKS
By:.~s?£~~#~A(fj:aJ(j IN.Stevens,SecretarY
TE.NAN.T.:C..I.T.Y.•o~.W.AUK..E•.•%....
~
.....////..;
By:~~~.•
..iIliamrPeard,··ayor
By:
Jeffrey
21