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HomeMy WebLinkAbout2016-04-18-Resolutions 16-134_1255 3rd St. - Lease Agr - Verizon WirelessTHE CITY OF WAUKEE,IOWA RESOLUTION 16-134 APPROVING LEASE AGREEMENT,1255 3 STREET SITE,WITH VKRIZON WIRELESS IN THE NAME AND BY THE A UTHORITY OF THE CITY OF 8'A UI EE,IO Wzl WHEREAS,City Staff received offers to lease city owned property for farming purposes;AND, WHEREAS,Verizon Wireless desires to lease space on the City of Waukee water tower located at 1255 3'Street for the installation and operation of certain antenna facilities;AND, WHEREAS,the terms of lease between the City of Waukee and Verizon Wireless are set forth in the agreement attached hereto as Exhibit A;AND, WHEREAS,the City Attorney has reviewed the Lease Agreement and finds it satisfactory. NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee on this, the 18'"day of April,2016,that the Lease Agreement,1255 3'Street Site,with Verizon Wireless is hereby approved. Attest: illi F.Peard,May r Rebecca D.Schuett,City Clerk ROLL CALL VOTE Shane Blanchard Brian Harrison Shelly Hughes Larry R.Lyon Rick Peterson AYE X X X X X NAY ABSENT ABSTAIN Lease Agreement 1255 3"St Site TIIIS LEASE AGREEMENT (this "Lease")is entered into this /SSl day of ,201+,by and between the City of Waukec,Iowa,a municipal corporation, (C Landlord"),and Verizon Wireless (VAW)LLC d/b/a Verizon Wireless ("Tenant'*). RECITALS A.Landlord is the owner in fee simple of a parcel of land located in the City of Winikee.Dallas County,State of Iowa,v hose legal description is set forth on the attached Exhibit A (the "Property"),on which I.andlord has constructed a water storage facility ("Water Tower").Thc street address of the Property is 1255 3"St,Waukee, Iowa, B.Tenant desires to lease space on the Water Tower for the installation and operation of certain antenna facilitics,which include directional antenna,connecting cables and appurtenances (refened to herein collectively as the "Antenna Facilities")for use in connection with its communications business. ln consideration of the mutual covenants and promises sct forth herein,and other valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ~Ldy u.L d1 d «11 III t T.t dT t nonexclusively leases from Landlord a pot2ion of the Property,consisting of space on the Water Tower I'o r antennas ("Tower Space*')and a ten foot (10')by twenty-six foot (26') parcel of land located at the base of the Water Tower which shall contain equipment appurtenant to the antennas ("Land Space")(collectively,the "Premises"),as shown on Exhibit B turd Exhibit C,attached hereto and incorporated herein by this reference. Tenant may not add additional antennas or equipment on the Water Tower from that shov,n on Exhibit B viithout the prior written approval of the Landlord. As part of its equipment,Tenant may also install and maintain utility wires,poles, cables,conduits and pipes in the manner and location depicted on Exhibit D over,under, and/or across the Property to the Premises for the sole purpose of servinty its antennas and equipment.Upon 120 days prior writien notice,Landlord shall have the right to require Tenant to relocate its utility vtirest poles,cables,conduits and pipes,at Tenant's expense. In addition,Landlord reserves the right to require Tenant to relocate its antennas or its equipment to anothin location within the Enclosure or Propettyt at Tenant's expense.Enclosure refers to the security fence surrounding the Water Tovter,Tenant shall complete the relocation of its antennas or equipment within one hundred and tvtenty (120)days of written notice fiom I,andlord,except in the case of emergency,in which case Tenant shall relocate its antennas or equipment immediately upon receipt of written notice fiom Landlord.The relocation shall bc at Tenant's expense,unless the Landlord's Duse DT Evuuxcc LCCCC IT 'ICI.'IIICut 2S46876yc relocation requirement results from Landlord's desire to lease space on the Water Town. to non-governmental third-party users.In that case,the third-party user shall be obligated to reimburse Tenant for ihe reasonable relocation costs of Tenant.Subject to Landlord*s prior v'ritten approval,Tenant shall be allowed if necessary to place a temporary cell site and antenna structure on Landlord's Property during relocation. 2.Access Easement.As partial consideration for rent paid under this Lease, Landlord hereby grants Tenant an easement across thc Property for ingress,egress and access to the Premises to service the Antenna Facilities during the term of this Lease and any renewal tettn.This easement shall have the same term as this Lease.Upon 120 days prior written notice,Landlord shall have the right to relocate the easement,at Tenant's expense,provided such new location shall not materially interfere with Tenant'8 operations. Tenant shall be provided with a key to the Property and may have access to thc Properly at any time.Tenant will not be given a key to the Water Tower.'fenant 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 ihe Waukee Public Works Department.If Tenant 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 nomtal 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 Tenanu Only individuals whose names and company affiliations appear on the list shall be granted access to the Water Tower.All individuals shall provide proper identilication to the Waukee Public Works Depaitment representative prior to entering the Water Tower.Tenant shall be responsible to provide its employees Gvho enter the Water Tower with all required safety cquipmcni in compliance with OSIIA standards and shall require that all of Tenant's contractors meet OSHA standards. 3.Term.The initial term of this Lease shall be ien years (the "Term")from the "Commencement Date",and terminating at midnight on the last day of the month in which the tenth anniversary of the Commencement Date shall have occuited.The Commencemtnit Date shall be the first day of October,2016.Nothwithstanding the foregoing,no work or installation by Tenant shall be commenced until the Annual Rent for the first year of the Term has been paid to Landlord in accordance with Paragraph 5 below. 4.Permitted Use.The Premises may be used by Tenant only for the nuSC rrr ivauiec CGGGe A rcenient 288G87G&i installation,operation and maintenance of antennas and equipment for the transmission and reception of wireless communication signals in the configuration shown on Exhibit I3.Tenant shall,at its expense,comply with all present and future federal,state,and local laws,ordinances,rules and regulations (including lavrs and ordinances relating to health, radio frequency emissions,other radiation and sal'ety)in connection with the installation, use,operation and maintenance of the Antenna Facilities.Tenant shall obtain,at Tenant's expense,from all applicable government and/or regulatory entities all licenses and permits or authorizations required for Tenant's use of the Premises 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 thc time covered by this Lease.The Tenant shall operate the Antenna Facilities in accordance with all Federal Communications Commission (pFCCa)statutes,rules and regulations. 5.Rent..Tenant shall pay Landlord,as rent,fwenty-eight Thousand and No/100 Dollars ($28,000.00)per year payable in advance,beginning on the Commencement Date,and annually thereafter ("Annual Rent").Landlord and Tenant acknowledge and agree that initial rental payment may not actually be sent by Tenant until thirty (30)days after the Commencement Date.Annual 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 I ease,and each year of each Renewal Term,by 3%per year.For the purposes of this Lease,all references io "year"shall be deemed to refer to the anmial anniversary date of the commcncernent of'this lease.Rent shall be due on the Commencement Date,and each year thereafter.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 thiriy (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 terinination 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 tenn hereof,only with the consent of the Landlord,shall bc construed to be a tenancy fi.om month to month at one and one half times the rents herein specified (prorated on a monthly basis). 6.~Oil l a .T t.h llh tl prr r».rhi L r two additional five-year terms,each a (aRenewal Term").This Lease shall automatically renew unless Tenant gives I.andlord written notice of its intent to not renew the Lease,in writing,at least 60 days prior to the expiration of the then current term.The Renewal Term shall be on the same terms and conditions as set forth herein. i&irxc or Waakee Lease A reemenr 2s4687rrp4 7.Interference. (a)Tenant's installation,operation,and maintenance of its Antenna Facilities shall noi damage or interfere in any way v"ith Landlord's operations or related repair and maintenance activities or with such activities of other tenants.'fenani 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 io terminate the Lease.Landlord,at all times during this I,ease,reserves the right to take any action it deems necessary,in its sole discretion,to repair,maintain,alter or improve the Property in connection v,:ith its operations as may be necessary,including leasing pai1s of the Water Tov er 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 pat2y except a governmental unit,oflice 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,transmission or recepiion 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 or transmission facility on the Water 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 proprietaiy 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 follov ing receipt ol 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.io the installation of antenna or transmission facilities pursuant to said proposal.If Tenant gives notice of objection due to intmference 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 hov'ever,if Tenant's use of the Premises is niaterially affected,Tenant may terminate the Lease.In lieu of termination,upon receipt of Landlord's prior written approval,Tenant may relocate its facilities to another mutally agreeable location on the Water Tower (provided such relocation eliminates the interference),at Tenant's cost but with no additional rent.Tenant is obligated to fully restore the Premises,including any portion abandoned if Tenant relocates its facilities in lieu of termination. DCSC IXI sVaekee l.eeae haeeemeal 2846876e4 (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 are 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,including powering down such equipment while the interference is being conected,provided that Tenant shall have the right to power up such equipment for intermittent testing.If the interference cannot be eliminated in a reasonable time after receipt of written notice of such interference,Tenant shall immediately cease operating its facility until the interference has been eliminated.If the interferencc cannot be eliminated with thirty (30)days after receipt of written notice ol' such interference,Landlord may tertninate this Lease. g.Antennas and E ui ment. (a)Installation.Tenant shall have the right,at its expense,to erect and maintain on the Premises,improvements,personal propeity and facilities,including without limitation,a maximum 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 specitied by Landlord in the Enclosure.These Antenna Facilitics shall be initially configured as set fotth in Exhibit B.Any antenna located on the stem of the Water Tower shall extend no further than nine (9)inches fiom the base ol 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 Tov'er shall be made by weldinrr,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-fi'ee and in compliance with aII applicable laws and ordinances,including compliance v;ith all OSHA requirements.In thc event installation of the Antenna Facilities shall cause Landlord to reconstruct or modify any portion of the Water Tower to niaintain the current usefulness of such poition or to comply v'ith laws or governmental regulations,including but not limited to obstruction lighting,vents,personnel access faciliticse or cathodic protection system, Tenant shall pay for such reasonable costs. (b)~Uradcs.Tenant may update or replace the Antenna Facilities from time to time with notification but witlmut the prior written approval of Landlord,provided that the replacement facilities are not greater in number or size than the existing facilities.If DESC D I'ivnnkee tense Aareenrenl 2846876r4 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 I'or any such replacement facilities and any supplemental materials as may be requested,for Landlord's evaluation and approval, (c)Maintenance.Tenant shall,at its ovrn 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 Premises 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 datnage,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 Premises to the same condition as it v as 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. 9.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 detem2ines 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 situal.ion where Landlord must request Tenant's relocation in the event of an etnergency 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 from any 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. DFSC D'i Waakee Laaac A laamaat 2846876a4 10.Termination. (a)Default.It shall be a default if (i)Tenant defaults in the payment or provision of rent or any other sums to I.andlord when duc,and does not cure such default within ten (10)days after receipt of written notice from Landlord of such default;(ii) I.andlord or Tenant defaults in the performance of any other covenant or condition of this Lease and does not cure such other default within thill (30)days after written notice from the other patty specifying the default complained of;(iii)Tenant abandons or vacates the Property;(iv)Tenant is adjudicated as bankrupt or makes any assignment for the benefit of creditors;or (v)Tenant becomes insolvent. (b)Landlord's Remedies for Tenant Default.In the event of a default by 'fenant,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 Premises 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 impaid 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 Premises,or any part thereof,for the account of Tenant upon such terms and conditions as Landlord may deem advisable,and any monies received fiom 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 the 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 Premises 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 I,andlord,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 Premises,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. (c)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 I.ease but in no event Dasc rrr u'aakee Lease Ayeemem 2846876e4 shall Tenant be entitled nor shall Landlord be responsible for any incidental or consequential damages including loss of profits. ldi ~ce c dl d.I rh ur r yd-r It rtlr r eyy t,d 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 pay or 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 attorney 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 I'rom the Tenant to Landlord on the first day of the month following the incurring of the respective expenses. (e)0 tional 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 il'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 liniited 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 'fenant 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/cellular 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 Premises infeasible or unacceptable for continued operation or if the Premises become unacceptable for economic reasons,or unacceptable under its design or engineering specifications. Written notice o'f'Landlord's termination pursuant to this subsection shall be effective upon receipt of such notice by Tenant, (f)Li uidated Dama es.Written notice of Tenant's termination pursuant to subsection (e)shall be given to Landlord,which notice shall be effective upon receipt of such notice.All rentals paid for the Lease of the Premises prior to said termination date shall be retained by Landlord.Upon such termination,this Lease shall become null and void and the parties shall have no further obligations to each other. 11.Alteration Dama e 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 ivritten notice to Landlord.In such event, Tenant shall promptly rcmove the Antenna Facilities from the Prcmiscs and shall restore the Premises to the same condition as existed prior to this Lease.This I.ease (and Tenant's obligation to pay rent)shall terminate upon Tenant's fulfillment of the obligations set forth in the preceding sentence,at which temiination Tenant shall bc DESC 17T V'deice Lceye Asreerryecl 2846876y4 entitled to the reimbursement of any unearned Annual I&cut prepaid by Tenant.Landlord shall have no obligation to repair any damage to any portion of the Premises. 12.Condemnation.In the event the Property is taken by eminent domain,this Lease shall terminate as of ihe 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 temiinate 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 aH 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 fiom 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. 13.Utilities.Tenant shall solely and independently be responsible for all costs of providing utilities to the Premises,including the separate metering,billing and payment of utility services consumed by Tenant's operations. 14.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, 15.Insurance. f)R~idl».T t ft)ftf f f))f d ff t ttt sole cost and expense a comprehensive commercial general liability insurance with minimum limits of Five Million Dollars ($5,000,000)as the coinbined single limit for each occun'ence of bodily injury,personal injury,death and property damage kaid 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 $1,000t000 for each accident Landlord will maintain insurance required by State law. fa)T~t'p t.r t t)tk pt f t'tt d tt ftk L 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. )7i SC l)T ivaakee ).ease tkareemetn 28ifr))76pi (c)Contractors/Subcontractors of Tenant.Tenant shall require that each and every one of its contractors and their subcontractors who perform v ork on the Premises 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,Tenant shall require that such contractors and subcontractors be named as additional insured parties on Tenant's insurance policies. (d)Evidence ol'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.Tenant shall provide Landlord with thirty (30)days'prior written notice of cancellation of its commercial general liability insurance policy. (fj Insurance Com anics.AII insurance shall be effected under valid and enforceable policies,insured by insurers authorized to do business by the State of Iowa or surplus line caniers on the State of Iowa Insurance Conimissioner's approved list of companies qualified to do business in the State of Iowa.All insurance carriers and surplus line carriers shall be rated A-VII or better by A.M.Best Company. 16.Hold Ilarmless.Landlord shall not at any time bc liable for injury or damage occun ing 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 Premises or Tenant's Antenna Facilities.Tenant agrees to indemnify,defend and hold Landlord harmless fmm claims,losses and expenses of any kind,including reasonable attorneys'fees,from Tenant,its employees,.agents or independent contractors or any other person,arising from the installation,use, maintenance,repair or removal of the Antenna I"acilities,except for claims arising li'om the negligence or intentional acts of Landlord,its employees,agents or independent contractors. 17.Notices.All notices,requests,demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, cettifted mail,return receipt requested,or sent by overnight canier to the following addresses: Ifto Tenant,to: Verizon Wireless (VAW)LLC d/b/a Verizon Wireless 180 Washington Valley Road Bedminster,Nev..lersey 07921 Attention:Network Real Fstate Dt:SC Dr Vreeeee I mere Rarecmem 284)si art 4 If'to thc Landlord,to: City Administrator City of Waukee 230 W.I-Iickman Rd Waukee.Iowa 50263 te.T~tt dAte e.L dt d t »d t t T ttt trtitt has good and unencumbered title to the Propeity free and clear of any liens or mortgages, except those disclosed to Tenant which ivill 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. 19.Environmental Re resentations and Warranties.Landlord hereby represents and warrants to Tenant that Landlord has never generated,stored,handled or disposed of any 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 Premises in compliance with all applicable Environmental Laws.The teim "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 se . (nCERCLAn);the Resource Conservation and Recovei3 Act of 1976,as amended,42 U.S.C.sections 6901 ~et se .(nRCRAn);the Federal Flazardous Materials Transportation Act,as amended,49 U.S.C.sections 1801 et sect.;the Toxic Substance Control Act,as amended,15 IJ.S.C.sections 2601 ~et se .;the Clean Air Act,as amended,42 U.S.C. sections 1857 ~et se .;the Federal Water Pollution Control Act,as amended,33 U.S.C. sections 1251 et sect.;and the rules,regulations and ordinances of the I J.S. Environmental Protection Agency 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 action,demands and liability arising 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 Premises in conjunction with its use of the Premises,and Tenant will at its cost,restore the Premises to an acceptable environmental condition should there be any environmental hazard or diunage resulting from Tenant's use of the Premises. DI.SC Irl'Weel'ee I.edec A recntent 2846876t4 20.A~it.T t y .II,tf I L p 'Itt"pp I f 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 PCC 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 Preinises 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. 21.Successors and Assi ns.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. 22.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 Premises 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,Liuidlord 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. 23.Treatment in Bankru ic .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.II 1012 et 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,11 U.S.C. ft 365,and,accordingly,shall be subject to the provisions of subsections (d)(3)and (d)(4) of said Section 365. 24.F~M,If'p;tyf,d I y d I d dt,p t dft.ts 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 v ork or doing acts,such party is excused from such performatice for the period of delay.The period for the perfoimance 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 Premises,Tenanl.may immediately erect any 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 I,andlord*s sole and absolute discretion,it elects to repair or restore the Property,upon completion of 1)k'se Dr waul;ee Lease Aareemettf is46876F4 such repair or restoration,Tenant is entitled to repair or rebuild the Tower and/or related l'acility in accordance with the terms agreed upon in this Lease. 25.~itE 't.Ah ad lip I »tl thl I t ltht di 2, Tenant acknowledges,understands and agrees that Tenant's right hereunder are limited and that access to the leased areas by I'enant 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 Tov er free of any such interference or disturbance.In the event that such action is undertakcn by Landlord,the Landlord its agents or contractors shall not be liable in any way to Tenantd its successors,assigns or any other third party for any damages that may be occasioned by virtue of I.andlords 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 Premises throughout the Term or Renewal Term,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. 26.Obli tations Continue.Thc obligations of Landlord and Tenant continue beyond the term and or termination of this Lease as it pertains to indemnification and envirolunental terms. 27.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 24 of the Lease. 28.Miscellaneous. (a)The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable altorncy'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. (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. Ol:SC Dr lVEIlkcc udhhC Il "ICCIIICIII EflCatS7624 (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 patty. (e)This Lease shall be construed in accordance with the laws of the State ol' iowa. (f)lf 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 patties 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 l.o 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 insn ument. (i)No modiiication,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 following page Remainder ofpage intenti anally left blank DFSC Dl Wcchcc hcccc Agcccmcm 2846876vd IN WITNESS WIII:.REOFy the parties have executed this Agreement as of'the date first above written. LANDI,ORD:CITY OF WAUKEE Attest: By: illiam F.Peard,Mayor Tim Moerman,ity Administrator STATE OF IOWA ) )ss. COUNTY OF DALLAS ) On this ~day of ),20)I7,before me,the undersigned,a Notary Public in and for the Stat of Iowa,personally appeared William F.Peard and Tim Moerman,to me personally known,and,who,being by me duly sworn,did say that they are the Mayor and City Administrator.respectively,of the City of Waukee,Iowa; that the seal affixed to the foregoing instrument is the coq&orate seal of the corporation, and that the instrument was signed and sealed on belhalf of the corporation,by authority of its City Council,as contained in Resolution No.g~~H adopted by the City C ll,d R ll C ll Ith Cty C ll th jssy ay*yet. 20~I,and that William F.Peard and Tim Moerman 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. aJ+ItEI3ECCA D.SCHUEtT Conlmlsslon tdUITlbey 716496 My Commission Expires May 13,2047 Notary Public in and for the State of Iowa My Commission expires 6~5'8+51 I OESC DT hvsui'de Lcshc ¹Icclncnl 2646876y4 TENANT:VERIZON WIRELESS (VAW)I.LC DIBIA VERIZON WIRELESS N ':Phillip J.French Title:Fxecutive Director -Network A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which the certificate is attached,and not the truthfulness,accuracy,or validity of that document. STATE OF CALIFORNIA ) )ss. COUNTY OF CONTRA COSTA ) r On s,t)before me,,~a Notary Public,personally appe ed Phillip J.French who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me tliat he executed the same in his authorized capacity,and that by his signature on the instrument the person,or thc entity upon behalf of which the person acted,executed the instrument. I certify under PENALTY OF PFRJURY under the laws of the State of California that the foregoing paragraph is true and correct. W ESS my hand d o cial seal. Signature of Notary Publ C. A.R.KRUSE.LUCTKE Commission ra 2104180a'6 Notary Public -Cafifornfa Contra Costa County M Comm.Ex irss Mar 22,201 9 DL'SC D I'Evaukee Lease A reemeul 2846876e4 Exhibit A Legal Description of Property on Which Water Tower is I.ocated Deed Book 430 Pa se 458 Commencing at a point 40 feet East of the NE Corner of Section 6,TWP.78N,Rng.26 W of the 5th P.M.,Dallas County,Iowa;thence East 1274.0 Ftd Thence South 585.7 Ft.to Point A;thence in a west-southwesterly direction 201.0 Ft.to a point 199.2 Ft.West and 27.0 Ft.South of Point A;thence in a south-southwesterly direction 228.5 FL to a point. 1107.0 Ft.East of the West line of said Section 5-78-26;thence West 967.0 Ft.to a point of 140 Ft.East of the West line of said Sec.5-78-26'I thence West-northwest 116.7 Ft.to a point 40 ft.East of the West line of said Section 5-78-26;thence North 780.0 Ft.to the point of beginning.The above parcel contains 23.44 acres,more or less and shall hereinafter be known as Lot A in NWI/O of Section 5,Twp.78N,Rng.26W of the 5th P.M.,Dallas County,Iowa. Commencing at a point 1314.0 East and 585.7'South of the NE Comer,Scc.6,Twp.78N, Rng.26W of the 5th P.M.,Dallas County,Iowa;thence South 255.2';thence West 211.2'I thence in a North-Northeasterly direction 228.5'to a point 199.2'West and 27.0'South of the point of beginning;thence in an East-Northeasterly direction 201.0'to the point of beginning.The above parcel contains 1.14 acres,more or less and shall hereinafter be known as I,ot B in NW1/4 of'Section 5,Twp.78N,Rng.26W of the 5th P.M.,Dallas County,Iowa. Deed Book 521 Pa e 273 Beginning at a point 780.0 feet S 0'01'East and 33.0 Feet N 90'East of the Northwest Corner of Government Lot 4 of Section 5,Township 78 North,Range 26,West of the 5th P.M.,Dallas County,Iowa,said point being on the East Right of Way line of a County Road,thence S 59'00'30"East,116.7 feet;thence S 89'57'30"East,1180.27 feet to the East line of Government Lot 4 of Section 5-78-26;thence S 0'02'West,along said East line 333.0 feet;thence S 89'53'West,470.2 feet;thence N 58'44'West,351.2 feet; thence S 89'56'West,509.6 feet to the East Right of Way line of a County Road;thence N 0'01'West,along said East Right of Way line,213.15 feet,to the point of beginning. And containing approximately 7.1347 acres. Deed Book 587 Pa e 721 The following described real estate situated in Dallas County,Iowa,to v;it: Lot A (street)to be known as Corene Avenue; Lot B (street)to be known as 2nd Street: Lot C (street)to be known as 1st Place. Said Plat of Corene Acres Plat 10 has been prepared by Henry S.Oakes,P.E.A.L.S. 3321 under date of October 6,1982. DSSC DT Waakee tease Asreesneas 2666876e6 Exhibit B Site Plan for Tenant's Antenna Facilities on the Property I/I IJJ «' IJJ 8 2 e fL K Z ,K a gg j Pa ay 'E.it ( cl c&ic ga aa a Necd&D b ca a Daso Dr Waueee recce Agrcemcat 2846876e'I Exhibit C Site I'lan for Enclosure Equipment Building and Access and Utility Locations $i 5 re& he / / Oy'/'""./ / /( // (( I / DESC DT a'cekcc Lcelc Ase:clllcll! 284687654 Exhibit D Tenant Utility Service on Property 6 I!I ".gt i le I Ce I/I I/I CI reI I ,.14 'I i! I 7":~ 'Kx', .-".C ' Ik' ! I c 8 CI) DIISC Dr Vecukee k C BIC Ik 8ICL'I II C Ill 2846876!4