HomeMy WebLinkAbout2012-06-04-Resolutions 12-135_Antenna Facilities - Lease Agr - USCOC of Greater IATHE CITY OF WAUKEE,IOWA
RESOLUTION 12-135
APPROVING LEASE AGREEMENT,1255 3RD ST.SITE,BY AND BETWEEN THE
CITY OF WAUKEE,lOW A,AND USCOC OF GREATER IOWA,LLC,RELATED TO
THE INSTALLATION AND OPERATION OF ANTENNA FACILITIES
IN THE NAME AND BY THE AUTHORiTY OF THE CITY OF WAUKEE,IOWA
WHEREAS,the City of Waukee,Iowa is a duly organized municipality within Dallas County;
AND,
WHEREAS,USCOC of Greater Iowa,LLC,desires to lease space on the City water tower
addressed as 1255 3'-d Street,Waukee,for the installation and operation of certain antenna
facilities,which include directional antenna,connecting cables and appurtenances for use in
connection with its connnunications business;AND,
WHEREAS,in response to USCOC of Greater Iowa,LLC,and their request,a Lease
Agreement,1255 3rd St.Site,attached hereto as Exhibit A,is proposed;AND,
WHEREAS,the City Attorney has reviewed the agreement and finds it satisfactory.
NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this
4th day of June,2012,that the Lease Agreement,1255 3'd St.Site,by and between the City of
Waukee,Iowa,and USCOC of Greater Iowa,LLC,is hereby approved.
Attest:
ROLL CALL VOTE
Shane Blanchard
Dan Dutcher
Casey L.Harvey
Shelly Hughes
Mike Watts
AYE
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X
NAY ABSENT ABSTAIN
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EXHIBIT A
Lease Agreement
1255 3'd St Site
THIS LEASE AGREEMENT (this "Lease")is entered into this L-Ith day of JLlN
2012,by and between the City of Waukee,Iowa,a municipal corporation,("Landlord"),and
USCOC of Greater Iowa,LLC,a Delaware limited liability company ("Tenant").
RECITALS
A.Landlord is the owner in fee simple of a parcel of land located in the City of
Waukee,Dallas County,State of Iowa,.whose legal description is set forth on the attached
Exhibit A (the "Property"),on which Landlord has constructed a water storage facility ("Water
Tower").The street address of the Property is 1255 3rd St,Waukee,Iowa.
B.Tenant desires to lease space on the Water Tower for the installation and
operation of certain antenna facilities,which include directional antenna,connecting cables and
appurtenances (referred to herein collectively as the "Antenna Facilities")for use in connection
with its communications business.
In consideration of the mutual covenants and promises set forth herein,and other
valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties
hereto agree as follows:
I.Leased Property.Landlord nonexelusively leases to Tenant and Tenant
nonexclusively leases from Landlord a portion of the Property,consisting of space on the Water
Tower for antennas and ground space on the Property located at the base of the Water Tower
which shall contain equipment appurtenant to the antennas (collectively,the "Property"),as
shown on Exhibit B,attached hereto and incorporated herein by this reference.Tenant may not
add additional antennas or equipment from that shown on Exhibit B without the prior written
approval of the Landlord.Landlord may permit others to use other portions of the Water Tower
for antennas and space on the Property for appurtenant equipment.
Landlord reserves the right to require Tenant to relocate its antennas to another location
on the Water Tower or its equipment to another location within the Enclosure.Tenant shall
complete the relocation of its antennas or equipment within one hundred and twenty (120)days
after written notice from Landlord.The relocation shall be at Tenant's expense,unless the
Landlord's relocation requirement results from Landlord's desire to lease space on the Water
Tower to non-governmental third-party users.In that case,the third-party user shall be obligated
to reimburse Tenant for the reasonable relocation costs of Tenant.
2.Access Easement.As partial consideration for rent paid under this Lease,
Landlord hereby grants Tenant an casement across the Property for ingress,egress and access to
the Property to service the Antenna Facilities during the term of this Lease and any renewal term.
This easement shall have the same term as this Lease.
Tenant shall be provided with a key to the Property and may have access to the Property
at any time.Tenant will not be given a key to the Water Tower.Tenant shall give Landlord
twenty-four (24)hours advance notice of its need for access to the Water Tower,except in an
emergency situation.In the case of an emergency situation,Tenant shall notify Landlord as soon
as possible.Improper or inadequate planning of a need for access shall not constitute an
emergency.Landlord shall provide one or more escort(s)to accompany Tenant or its
representative(s)when access to the Water Tower is requested.Landlord will not charge Tenant
for escort(s)during normal business hours of the Waukee Public Works Department.lfTenant
requests an escort after normal business hours of the Waukee Public Works Department,Tenant
shall pay Landlord a fee equal to the number of hours for which the escort is required times the
average hourly overtime rate for employees of the Waukee Public Works Department,including
benefits,with a minimum billing of two hours time for each call after normal business hours.
Tenant shall provide a list of the names of individuals authorized to access the Water Tower on
its behalf,including identification on the list as to whether the individual is an employee of
Tenant or an employee of a contractor authorized by Tenant.Only individuals whose names and
company affiliations appear on the list shall be granted access to the Water Tower.All
individuals shall provide proper identification to the Waukee Public Works Department
representative prior to entering the Water Tower.Tenant shall be responsible to provide its
employees who enter the Water Tower with all required safety equipment in compliance with
OSHA standards and shall require that all of Tenant's contractors meet OSHA standards.
3.Term.The initial term of this Lease shall be five years (the "Term")commencing
on April 1,2012,(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.
4.Permitted Use.The Property may be used by Tenant only for the installation,
operation and maintenance of antennas and equipment for the transmission and reception of
wireless communication signals in the configuration shown on Exhibit B.Tenant shall,at its
expense,comply with all present and future federal,state,and local laws,ordinances,rules and
regulations (including laws and ordinances relating to health,radio frequency emissions,other
radiation and safety)in connection with the installation,use,operation and maintenance of the
Antenna Facilities.Tenant shall obtain,at Tenant's expense,fromall applicable govemment
and/or regulatory entities all licenses and permits or authorizations required for Tenant's use of
the Property and shall provide copies of such licenses and permits to Landlord upon request.
Tenant shall use and maintain its Antenna Facilities in a commercially reasonable manner during
the time covered by this Lease.The Tenant shall operate the Antenna Facilities in accordance
with all Federal Communications Commission ("FCC")statutes,rules and regulations.
7.Rent.Tenant shall pay Landlord,as rent,Twenty Six Thousand Four Hundred
Dollars ($26,400.00)per year payable,in advance,on the first day of January ("Annual Rent").
Rent shall be paid to the Landlord at Landlord's address for notices specified in Section 19
below,to the attention of the City Clerk.The amount of Annual Rent shall escalate each year of
this lease,and each ycar of each Renewal Term,by 3%per year.For the purposes of this Lease,
all references to "year"shall be deemed to refer to a calendar year.If the Commencement Date
does not fall on thc first day of the year,then rent for the period from the Commencement Date
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to the last day of the year shall be prorated based on the actual number of days remaining in the
year from the Commencement Date and such rent shall be due on the Commencement Date.
Tenant shall pay Landlord a late payment charge equal to five percent (5%)of the late payment
for any payment not paid when due.Any amounts not paid when due shall bear interest until
paid at the lesser of the rate of two percent (2%)per month or the highest rate permitted by law.
Except as otherwise set forth herein,if this Lease is terminated for any reason other than
a default by Tenant at a time other than on the last day of a year,Annual Rent shall be prorated
to the date of termination and any excess prepaid Annual Rent shall be refunded to Tenant within
thirty (30)days of such termination,provided the Antenna Facilities are removed and all
applicable repairs are satisfactorily completed prior to the termination date.If the Antenna
Facilities are not removed by the termination date,Annual Rent shall continue to accrue until
such time as the Antenna Facilities are removed and applicable repairs are completed to the
satisfaction of Landlord.Any holding over after the expiration of the term hereof,only with the
consent of the Landlord,shall be construed to be a tenancy from month to month at one and one
half times the rents herein specified (prorated on a monthly basis).
8.Option to Renew.Tenant shall have the option to renew this Lease for four
additional five-year terms,each a ("Renewal Term").In the event of such election,the Renewal
Tcnn shall be on the same terms and conditions as set forth herein.Tenant may exercise the
option to renew by giving Landlord written notice of Tenant's exercise of the option to renew at
least sixty (60)days before the expiration of the initial term or Renewal Term of the Lease.
9.Interference.
(a)Tenant's installation,operation,and maintenance of its Antenna Facilities shall
not damage or interfere in any way with Landlord's operations or related repair and maintenance
activities or with such activities of other tenants,Tenant agrees to cease all such actions which
materially interfere with Landlord's use of the Water Tower immediately upon actual notice of
such interference,provided however,in such case,Tenant shall have the right to terminate the
Lease.Landlord,at all times during this Lease,reserves the right to take any action it deems
necessary,in its sole discretion,to repair,maintain,alter or improve the Property in connection
with its operations as may be necessary,including leasing parts of the Water Tower and ground
space to others.
(b)Landlord does not guarantee to Tenant subsequent noninterference with Tenant's
communications operations,provided,however,that in the event any other party except a
governmental unit,office or agency requests a lease and/or permission to place any type of
additional antenna or transmission facility on the Water Tower after the Tenants have placed
their antennas on the Water Tower,the procedures of this section shall govern to determine
whether such antenna or transmission facility will interfere with Tenant's transmission
operations.
(c)Except for any request related to the operation,transrrussion or reception of
Landlord's radio communication frequencies,if Landlord receives any such request for a lease
and/or permission to place any type of additional antenna orlransmission facility on the Water
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Tower after already existing Tenants have placed their antennas on the Water Tower,Landlord
shall submit a proposal complete with all technical specifications reasonably requested by Tenant
to Tenant for review for noninterference;however,Landlord shall not be required to provide
Tenant with any specifications or information claimed to be of a proprietary nature by the third
party.The third party shall be responsible for the reasonable cost of preparing the technical
specifications for its proposed transmission facility.Tenant shall have thirty (30)days following
receipt of said proposal to make any objections thereto,and failure to make any objection within
said thirty (30)day period shall be deemed consent by Tenant to the installation of antenna or
transmission facilities pursuant to said proposal.If Tenant gives notice of objection due to
interference during such thirty (30)day period and Tenant's objections are verified by Landlord
to be valid,then Landlord shall not proceed with such proposal unless the third party modifies
the proposal in a manner determined,in Landlord's reasonable judgment,to adequately reduce
the interference.In that case,Landlord may proceed with the proposal.Another governmental
unit may be allowed to place antenna or other communications facilities on the Water Tower
regardless of potential or actual interference with Tenant's use,provided however,if Tenant's use
of the Premises is materially affected,Tenant may terminate the Lease.
(d)Tenant's use and operation of its facilities shall not interfere with the use and
operation of other communication facilities on the Water Tower that me installed by other
already existing Tenants.If Tenant's facilities cause interference with already existing Tenants,
Tenant shall take all measures reasonably necessary to correct and eliminate the interference.If
the interference cannot be eliminated in a reasonable time,Tenant shall itmnediately cease
operating its facility until the interference has been eliminated.If the interference cannot be
eliminated with thirty (30)days,Landlord may terminate this Lease.
10.Antelmas and Equipment.
(a)Installation.Tenant shall have the right,at its expense,to erect and maintain on
the Property,improvements,personal property and facilities,including without limitation,a
maximum of 6 radio transmitting and receiving antennas,and to locate electronic and other
ancillary equipment necessary to the use and enjoyment of the antennas at a location specified by
Landlord in the Enclosure.These Antenna Facilities shall be initially configured as set forth in
Exhibit B.Any antenna located on the stem of the Water Tower shall extend no further than
nine (9)inches from the base of the Water Tower's fluted column.Tenant's installation of all
such Antenna Facilities shall be done according to plans approved by Landlord.Any damage to
the Water Tower during installation and/or during operations shall be repaired or replaced
immediately at Tenant's expense and to Landlord's sole satisfaction.In connection with the
installation and operation of the Antenna Facilities,Tenant shall not make any penetrations of
the surface of the Water Tower without Landlord's prior written consent.Connections to the
Water Tower shall be made by welding,using welders who are certified for such work,and all
areas of the Water Tower disturbed by such operations shall,at Tenant's cost,be sandblasted and
painted to Landlord's specifications.Tenant agrees to paint the Antenna Facilities,the color of
which shall be approved by Landlord.All work performed by Tenant or its contractors shall be
inspected by the City Engineer for compliance with the plans submitted by Tenant and with the
standards set forth in this Lease.The cost of such inspection and review shall be billed to and
paid by Tenant.Tenant shall cause all installation of the Antenna Facilities to occur lien-free
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and in compliance with all applicable laws and ordinances,including compliance with all OSHA
requirements.In the event installation of the Antenna Facilities shall cause Landlord to
reconstruct or modify any portion of the Water Tower to maintain the current usefulness of such
portion or to comply with laws or govermnental regulations,including but not limited to
obstruction lighting,vents,personnel access facilities,or cathodic protection system,Tenant
shall pay for such reasonable costs.
(b)Upgrades.Tenant may update or replace the Antenna Facilities from time to time
with notification but without the prior written approval of Landlord,provided that the
replacement facilities are not greater in number or size than the existing facilities.If Tenant
desires to make changes to the Antenna Facilities that increase the size,weight or windloading of
the existing Antenna Facilities,or their location on the Water Tower,Tenant shall request
approval in writing from Landlord.Tenant shall submit to Landlord a detailed proposal for any
such replacement facilities and any supplemental materials as may be requested,for Landlord's
evaluation and approval.
(c)Maintenance.Tenant shall,at its own expense,maintain the Antenna Facilities in
a safe condition,in good repair and in a manner suitable to Landlord so as not to conflict with the
use of or other leasing of the Water Tower by Landlord.Tenant shall have sole responsibility for
the maintenance,repair,and security of its Antenna Facilities and shall keep the same in good
repair and condition during the Lease term.Tenant shall keep the Property free of debris and
anything of a dangerous,noxious or offensive nature or which would create a hazard or undue
vibration,heat,noise or interference.If the Water Tower is damaged for any reason,other than
by reason of the negligence,willful misconduct or gross negligence of Tenant or its agents,so as
to render it substantially unusable for Tenant's intended use and Tenant does not otherwise
utilize or place temporary facilities on the property,the Rent shall abate until Landlord,at
Landlord's expense,restores the Water Tower to its condition prior to such damage;provided,
however,in the event Landlord fails to repair the Water Tower within seven (7)days following
the date of such damage,Tenant shall have the right to terminate this Lease by giving Landlord
written notice thereof,as long as Tenant has not resumed operations upon the Property.
(d)Removal.Tenant,at its sole expense,shall promptly remove the Antenna
Facilities upon termination of this Lease and shall restore the Property to the same condition as it
was in on the Commencement Date of this Lease,reasonable wear and tear expected.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 alter the termination of this Lease,
and Tenant shall pay any such removal costs.
11.Maintenance of Water Tower.If Landlord should need to sandblast,paint or
otherwise maintain the Water Tower,it shall coordinate such efforts with Tenant so that such
maintenance does not cause undue interference with Tenant's Antenna Facilities.In the event
Landlord determines that it is necessary for Tenant to temporarily move its Antenna Facilities in
order for Landlord to complete such maintenance,Landlord shall provide Tenant with one
hundred and twenty (120)days advance notice in writing.This notice requirement shall not
affect any situation where Landlord must request Tenant's relocation in the event of an
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emergency as necessary to protect the health,safety,and welfare of visitors or Landlord's other
tenants.Tenant shall move its Antenna Facilities at its own expense.
If space allows,at its cost and expense,Tenant may place a temporary facility on the
property during any such maintenance provided it does not interfere with the maintenance being
undertaken by landlord and Tenant holds Landlord harmless fr0111any and all liability that may
arise through the installation and use of a such a facility,and the same is removed from the
property upon completion of Landlord's maintenance activities.
12.Termination.
(a)Default.It shall be a default if (i)Tenant defaults in the payment or provision of
rent or any other sums to Landlord when due,and does not cure such default 'within ten (10)
days;(ii)Landlord or Tenant defaults in the performance of any other covenant or condition of
this Lease and does not cure such other default within thirty (30)days after written notice from
the other party specifying the default complained of;(iii)Tenant abandons or vacates the
Property;(iv)Tenant is adjudicated as bankrupt or makes any assignment for thc benefit of
creditors;or (v)Tenant becomes insolvent or Landlord reasonably believes Tenant to be
insecure,
(b)Landlord's Remedies for Tenant Default.In the event of a default by Tenant,
Landlord shall have the right,at its option,in addition to and not exclusive of any other remedy
Landlord may have by operation of law,without any further demand or notice,to re-enter the
Property and eject all persons therefrom,and either (i)declare this Lease at an end,in which
event Tenant shall immediately remove the Antenna Facilities and pay Landlord a sum of money
equal to the total of (A)the amount of the unpaid rent accrued through the date of termination;
(B)the amount by which the unpaid rent reserved for the balance of the term exceeds the amount
of such rental loss that the Tenant proves could be reasonably avoided (net of the costs of such
reletting);and (C)any other amount necessary to compensate Landlord for all detriment
proximately caused by Tenant's failure to perform its obligations under the Lease,or (ii)without
terminating this Lease,relet the Property,or any part thereof,for the account of Tenant upon
such terms and conditions as Landlord may deem advisable,and any monies received from such
reletting shall be applied first to the expenses of such reletting and collection,including
reasonable attorneys'fees,any real estate commissions paid,and thereafter toward payment of all
sums due or to become due to Landlord hereunder,and if a sufficient sum shall not be thus
realized to pay such sums and other charges,Tenant shall pay Landlord any deficiency monthly,
notwithstanding that Landlord may have received rental in excess of thc rental stipulated in this
Lease in previous or subsequent months,and Landlord may bring an action therefor as such
monthly deficiency shall arise.No re-entry and taking of possession of the Property by
Landlord shall be construed as an election on Landlord's part to terminate this Lease,regardless
of the extent of renovations and alterations by Landlord,unless a written notice of such intention
is given to Tenant by Landlord.Notwithstanding any reletting without termination,Landlord
may at any time thereafter elect to terminate this Lease for such previous breach.If suit shall be
brought by Landlord for recovery of possession of the Property,for the recovery of any rent or
any other amount due under the provisions of this Lease,or because of the breach of any other
covenant,the Tenant shall pay to the Landlord all expenses incurred therefor,including
reasonable attorney fees.
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Tenant's Remedies for Landlord Default.In the event of default by Landlord,
Tenant shall be entitled to the application of all appropriate remedies available to Tenant under
state and federal law in the enforcement of this Lease but in no event shall Tenant be entitled nor
shall Landlord be responsible for any incidental or consequential damages including loss of
profits.
(c)Cure by Landlord.In the event of any default of this Lease by Tenant,the
Landlord may at any time,after notice,cure the default for the account of and at the expense of
the Tenant.If Landlord is compelled to payor elects to pay any sum of money or to do any act
which will require the payment of any sum of money or is compelled to incur any expense,
including reasonable attomey fees in instituting,prosecuting or defending any action to enforce
the Landlord's rights under this Agreement,the sums so .paid by Landlord,with all interest,costs
and damages shall be deemed to be rent and shall be due from the Tenant to Landlord on the first
day of the month following the incurring of the respective expenses.
(d)Optional Termination.This Lease may be terminated (i)by Tenant if it is unable
to obtain or maintain any license,permit,or other governmental approval necessary for the
operation of the Antenna Facilities or Tenant's business;(ii)by Landlord if the Landlord decides,
in its sole discretion and for any reason,to discontinue use of the Water Tower;(iii)by Landlord
if it determines,in its sole discretion and for any reason,that the Water Tower is structurally
unsound or otherwise not suitable for Tenant's use,including but not limited to consideration of
age of the structure,damage or destruction of all or part of the Water Tower from any source,or
factors relating to the condition of the Water Tower;(iv)by Landlord if it determines in its sole
discretion that continued use of the Water Tower by Tenant is in fact a threat to health,safety or
welfare or violates applicable laws or ordinances;(v)by Landlord at its sole discretion if Tenant
loses its license to provide PCS/cellulm-service for any reason,including,but not limited to,
nonrenewal,expiration,or cancellation of its license;or (vi)by Tenant,if Tenant experiences
performance problems for any reason which makes the Property infeasible or unacceptable for
continued operation or if the Property become unacceptable for economic reasons,or
unacceptable under its design or engineering specifications.Written notice of Landlord's
termination pursuant to this subsection shall be effective upon receipt of such notice by Tenant.
(e)Liquidated Damages.Written notice of Tenant's termination pursuant to
subsection (d)shall be given to Landlord,which notice shall be effective upon receipt of such
notice.All rentals paid for the Lease of the Property prior to said termination date shall bc
retained by Landlord.Upon such termination,this Lease shall become null and void and the
parties shall have no further obligations to each other.
13.Alteration,Damage or Destruction.If the Water Tower or any portion thereof is
altered,destroyed or damaged so as to materially hinder effective use of the Antenna Facilities
through no fault or negligence of Tenant,Tenant may elect to terminate this Lease upon sixty
(60)days written notice to Landlord.In such event,Tenant shall promptly remove the Antenna
Facilities from the Property and shall restore the Property to the same condition as existed prior
to this Lease.This Lease (and Tenant's obligation to pay rent)shall terminate upon Tenant's
fulfillment of the obligations set forth in the preceding sentence,at which termination Tenant
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shall be entitled to the reimbursement of any unearned Annual Rent prepaid by Tenant.
Landlord shall have no obligation to repair any damage to any portion of the Premises.
14.Condemnation.In the event the Property is taken by eminent domain,this Lease
shall terminate as of the date title to the Property vests in the condemning authority.In event a
portion of the Property is taken by eminent domain,either party shall have the right to terminate
this Lease as of said date of title transfer,by giving sixty (60)days written notice to the other
party.In the event of any taking under the power of eminent domain,Tenant shall not be entitled
to any portion of the reward paid for the taking and the Landlord shall receive full amount of
such award.Tenant hereby expressly waives any right or claim to any portion thereof although
all damages,whether awarded as compensation for diminution in value of the leasehold or to the
fee of the Property,shall belong to Landlord.Tenant shall have the right to claim and recover
from the condemning authority,but not from Landlord,such compensation as may be separately
awarded or recoverable by Tenant on account of any and all damage to Tenant's business and any
costs or expenses incurred by Tenant in moving or removing its Antenna Facilities.
15.Utilities.Tenant shall solely and independently be responsible for all costs of
providing utilities to the Property,including the separate metering,billing and payment of utility
services consumed by Tenant's operations.
16.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 any fees and assessments attributable
to the Property for the use of the Property as a water storage facility.
17.Insurance.
(a)Required Insurance.Tenant will maintain in full force and effect at its sole cost
and expense a comprehensive commercial general liability Insurance with minimum limits of
Two Million Dollar's ($2,000,000)as the combined single limit for each occurrence of bodily
injury,personal injury,death and property damage and name Landlord as an additional insured on
the policy.Tenant will maintain in full force and effect at its sole cost and expense worker's
compensation insurance meeting applicable statutory requirements and employer's liability
insurance with minimum limits of$I,OOO,OOOfor each accident.
Landlord will maintain insurance required by State law.
(b)Tenant's Propelty.Tenant will keep in force for the duration ofthc Lease a policy
covering damages to its property at the Property.The amount of coverage shall be sufficient to
replace the damaged property,loss of use and comply with any ordinance or law requirements.
(c)Contractors/Subcontractors of Tenant.Tenant shall require that each and every
one of its contractors and their subcontractors who perform work on the Property to carry,in full
force and effect,worker's compensation and comprehensive public liability insurance coverages
of the type which Tenant is required to obtain under the terms of this Lease or,in the alternative,
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Tenant shall require that such contractors and subcontractors be named as additional insured
parties on Tenant's insurance policies.
(d)Evidence of Insurance.Certificates of insurance for each insurance policy
required to be obtained by Tenant in compliance with this section shall be filed and maintained
with Landlord annually during the term of the Lease.Tenant shall immediately advise Landlord
of any claim or litigation that may result in liability to Landlord.
(e)Cancellation of Policies of Insurance.All certificates of insurance maintained
pursuant to this Lease shall contain the following provision:
"Should any of the above described policies be cancelled before
the expiration date thereof,notice will be delivered in accordance
with policy provisions.At least sixty (60)days prior written notice
shall be given to Landlord by the Tenant of any intention not to
renew such policy or to cancel,replace or materially alter same,
such notice to be given by registered mail to the parties named in
this section of the Lease.
(f)Insurance Companies.All insurance shall be effected under valid and enforceable
policies,insured by insurers authorized to do business by the State of Iowa or surplus line
carriers on the State of Iowa Insurance Commissioner's approved list of companies qualified to
do business in the State of Iowa.All insurance carriers and surplus linc carriers shall be rated A-
VII or better by A.M.Best Company.
(h)Review of Limits.Once during each calendar year during the term of this Lease,
Landlord may review the insurance coverages to be carried by Tenant.If Landlord determines,
based on any factors or occurrences,including but not limited to,substantial increases in
the level of jury verdicts or judgments or the passage of state,federal or other
governmental compensation plans,or laws which would materially increase Landlord's
exposure to risk,that higher limits of coverage are necessary to protect the interests of
Landlord,Tenant shall be so notified and shall obtain the additional limits of insurance that are
commercially reasonable,at its sole cost and expense.
18.Hold Harmless.Landlord shall not at any time be liable for inj ury or damage
occurring to any person or property from any cause whatsoever arising out of or in any way
connected with Tenant's installation,maintenance,repair,use,operation,condition or
dismantling of the Property or Tenant's Antenna Facilities.Tenant agrees to indemnify,defend
and hold Landlord harmless from claims,losses and expenses of any kind,including reasonable
attorneys'fees,from Tenant,its employees,agents or independent contractors or any other
person,arisiug 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.
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19.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:
USCOC of Greater Iowa,LLC
Attention:Real Estate
8410 West Bryn Mawr Avenue
Chicago,Illinois 60631
--Gity-AdmillistFatOl~
City of Waukee
230 W.Hickman Rd
Waukee,Iowa 50263
----------
If to the Landlord,to:
20.Title and Authority.Landlord covenants and warrants to Tenant that (i)it has
good and unencumbered title to the Property 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 Property;
(ii)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 (iii)that no
additional ground lease or easement is required from any third party for access to the Property.
21.EnvirOillilental Representations and Warranties.Landlord hereby represents and
warrants to Tenant that Landlord has never generated,stored,handled or disposed of ally
hazardous waste or Hazardous Substances,as hereinafter defined,upon the Property,and that
Landlord has no knowledge of such uses historically having been made of the Property or such
substances historically having been introduced thereon.
Tenant represents,warrants and agrees that it will conduct its activities on the Property in
compliance with all applicable Environmental Laws.The term "Environmental Laws"means
and includes any federal,state or local law,statute,regulation or ordinance pertaining to health,
industrial hygiene or the environmental or ecological conditions,including without limitation
each of the following (and their respective successor provisions):the Comprehensive
Environmental Response,Compensation and Liability Act of 1980,as amended,42 U.S.C.
sections 9601 et seq.("CERCLA");the Resource Conservation and Recovery Act of 1976,as
amended,42 U.S.c.sections 6901 et seq.("RCRA");the Federal Hazardous Materials
Transportation Act,as amended,49 U.S.C.sections 1801 et scq.;the Toxic Substance Control
Act,as amended,15 U.S.C.sections 2601 et seq.;the Clean Air Act,as amended,42 U.S.c.
sections 1857 et seq.;the Federal Water Pollution Control Act,as amended,33 U.S.c.sections
1251 et seq.;and the rules,regulations and ordinances of the U.S.Environmental Protection
Agcncy and of all other federal,state,county and municipal agencies,boards,commissions and
other governmental bodies and officers having jurisdiction over the Property.Tenant agrees to
defend,indemnify and hold Landlord harmless from and against any and all claims,causes of
10
action,demands and liability ansing from Tenant's breach of the above-described warranty.
Tenant hereby represents that Tenant will identify,remove and dispose of any Hazardous
Substance placed on the Property in conjunction with its use of the Property,and Tenant will at
its cost,restore the Property to an acceptable environmental condition should there be any
environmental hazard or damage resulting from Tenant's use of the Property,
22.Assignment.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 Property or
otherwise assign this Lease,except upon written approval of Landlord,and Tenant is not relieved
of any liabilities and obligations hereunder in the event a sublease is permitted.
23.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 and assigns.
24.Subordination.Tenant agrees to subordinate this Lease to any mortgage which
may hereafter be placed on the Property,provided such mortgagee thereunder shall ensure to
Tenant the right to possession of the Property and other rights granted to Tenant herein so long
as Tenant is not in default beyond any applicable grace or cure period,such assurance to be in
form reasonably satisfactory to Tenant.If requested by Tenant,Landlord agrees to use
Landlord's best efforts to assist Tenant in obtaining from any holder of a security interest in the
land underlying the Property a non-disturbance agreement in form reasonably satisfactory to
Tenant.
25.Treatment in Bankruptcy.The parties to this Lease hereby expressly agree and
acknowledge that it is the intention of both parties that in the event that during the term of this
Lease Tenant shall become a debtor in any voluntary or involuntary bankruptcy proceeding (a
"Proceeding")under the United States Bankruptcy Code,11 U.S.C.§101,ct seq.(The "Code"),
this Lease is and shall be treated as an "unexpired lease of nonresidential real property"for
purposes of Section 365 of the Code,II U.S.C.§365,and,accordingly,shall be subject to the
provisions of subsections (d)(3)and (d)(4)of said Section 365.
26.Force Maieurc.If a party is delayed or hindered in,or prevented from the
performance required under this Lease (except for payment of monetary obligations)by reason
of earthquakes,landslides,strikes,lockouts,labor troubles,failure of power,riots,insurrections,
war,acts of God or other reasons of like nature,not the fault of the party delayed in performing
work or doing acts,such party is excused from such performance for the period of delay.The
period for the performance of any such act shall then be extended for the period of such delay.
In the event that Tenant invokes this provision because damage to the Property has hindered,
delayed,or prevented Tenant from using the Property,Tenant may immediately erect any
11
temporary facilities on the Property necessary to resume service,provided that such temporary
facilities do not unreasonably interfere with Landlord's ability to repair or restore the Property.
If,in Landlord's sole and absolute discretion,it elects to repair or restore the Property,upon
completion of such repair or restoration,Tenant is entitled to repair or rebuild the Tower and/or
related facility in accordance with the terms agreed upon in this Lease.
27.Quiet Enjoyment.Any and all provisions set forth herein notwithstanding,Tenant
acknowledges,understands and agrees that Tenant's right hereunder are limited and that access
to the leased areas by Tenant is restricted hereunder,Tenant also understands and agrees that the
Landlord will continue to utilize the leased premises as a City Water Tower and said use is of
paramount priority to the use granted to Tenant hereunder.In the event that said Antenna Facility
in any way interferes effects or disturbs the use of the water tower,or in the event of an
emergency of any kind,in the sole discretion of the City engineer,this lease may be terminated
immediately,without notice,and the facility removed at the direction of the staff of the City so
as to restore full use and enjoyment of the Water Tower free of any such interference or
disturbance.In the event that such action is undertaken by Landlord,the Landlord its agents or
contractors shall not be liable in any way to Tenant,its successors,assigns or any other third
party for any damages that may be occasioned by virtue of Landlords actions,including but not
limited to the damage to the Antenna Facilities and equipment occasioned by removal or
modification or any and all damages occasioned by said removal.Landlord covenants that,
subject to the terms of this Lease,Tenant shall have quiet and peaceable possession of the
Property throughout the Term or Renewal Te1111,if any,as the case may be,and that Landlord
will not intentionally disturb Tenant's enjoyment thereof as long as Tenant is not in default under
this Lease.
28.Obligations Continue.The obligations of Landlord and Tenant continue beyond
the term and or termination of this Lease as it pertains to indcmnification and environmental
terms.
29.Performance Bond.As a condition of the Lease,Tenant is required to provide a
bond in an amount not less than twenty thousand dollars ($20,000.00)guaranteeing the removal
of Tenant's Antenna Facilities when the lease expires or is terminated or the site is abandoned,60
days after Tenant is in default of the Lease,unless the time is reasonably extended pursuant to
section 26 of the Lease."
30.Miscellaneous.
(a)The substantially prevailing party in any litigation ansmg hereunder shall be
entilled to its reasonable attorney's fees and court costs including appeals,if any.
(b)This Lease constitutes the entire agreement between the parties,and any prior
understandings or oral or written agreements between the parties respecting the within subject
matter.Any amendments to this Lease must be in writing and executed by both parties.
12
(c)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.
(d)Each party agrees to cooperate with the other in executing any documents
(including a Memorandum of Lease)necessary to protect its rights or use of the Property.The
Memorandum of Lease may be recorded in place of this Lease,by either party.
(e)This Lease shall be construed in accordance with the laws of the State ofIowa.
(f)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.
(g)The persons who have executed this Lease represent and warrant that they are
duly authorized to execute this Lease in their representative capacity as indicated.
(h)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.
(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.
IN WITNESS WHEREOF,the parties have executed this Agreement as of the date first
above written.
LANDLORD:CITY OF WAUKEE
/
Attest:
Bradly M.bects
Interim City Administrator
13
STATE OF IOWA )
)ss.
COUNTY OF DALLAS )
On this 0t/l\day of J""t.,!Jvlt ,20 I;).,before me,the undersigned,a Notary
Public in and for the State of Iowa,personally appeared William F.Peard and Bradly M.Deets,
to me personally known,and,who,being by me duly sworn,did say that they are the Mayor and
Interim City Administrator,respectively,of the City of Waukee,Iowa;that the seal affixed to the
foregoing instrument is the corporate seal of the corporation,and that the instrument was signed
and sealed on behalf of the corporation,by authority of its City Council,as contained in
Resolution No.IJ-13")adopted by the City Council,under Roll Call of the City Council on
the :1J1'l day of 1(,/Ni...,20 IJ,and that William F.Peard and Bradly M.Deets
acknowledged the execution of the instrument to be their voluntary act and deed and the
voluntary act and deed of the corporation,by it voluntarily executed.r:i-"'"REBECCA D.SCHUETI
~'#-"1.Commission Number 716496"",;.~My Commission Expires
ows-May 13,2014
~f.~0~
Notary Public in and for the
State ofIowa
My Commission expires 05"lf':J/~!-(
I {
14
TENANT:USCOC OF GRYA TER IO'Y A,LLC
By:£{:,t,-&/t
Name:.I "'
Titl e :_~~l:::-c'-l::J~;,.LQiJ;:::It.\.-1~
i';nT\approved at
USee11 by cfiv'{;d.'J
STATEOF~
COUNTY OF CDD~rss
On this~day of C\,0 "A ,20l~,beforc,Jl1f.,the unders'gped,a Notary Public in
and for the said State,per~eared ,'"I:I '\{')',LDl.0Q...~~,to me personally
known,who,being by me duly sworn,did say that he is the l"_~.'~ofUSCOC
of Greater Iowa,LLC,a Delaware limited liability company,executing the foregoing instrument
on behalf of the limited liability company,by authority of the corporation's Board of Directors;
and that as such officer acknowledged execution of the instnunent to be the voluntary act and
deed of the limited liability company,by it and by him voluntarily executed.
OfF\C\~o~~~fEEG
LINDY L.'It STATE Of ILLINOIS
NOTf<RY puaLi '8\PIRES 9.23,2015
MY~on expires -I-~.":',L
15
Exhibit A
Legal Description of Property on Which Water Tower is Located
Parent Parcel:
Lots A,B,C of NW X of Sec 5-78-26,Dallas County,Iowa
16
Exhibit B
Site Plan for Tenant's Antenna Facilities on the Property
17
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