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HomeMy WebLinkAbout2016-04-18-J01H Verizon Lease AgrTHE CITY OF WAUKEE, IOWA RESOLUTION 16- APPROVING LEASE AGREEMENT, 1255 3RD STREET SITE, WITH VERIZON WIRELESS IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA 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 3rd 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 18th day of April, 2016, that the Lease Agreement, 1255 3rd Street Site, with Verizon Wireless is hereby approved. ____________________________ William F. Peard, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk ROLL CALL VOTE AYE NAY ABSENT ABSTAIN Shane Blanchard Brian Harrison Shelly Hughes Larry R. Lyon Rick Peterson DESC DT Waukee Lease Agreement 2846876v4 Lease Agreement 1255 3rd St Site THIS LEASE AGREEMENT (this "Lease") is entered into this ____ day of _________, 201__, by and between the City of Waukee, Iowa, a municipal corporation, ("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 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: 1. Leased Property. Landlord nonexclusively leases to Tenant and Tenant nonexclusively leases from Landlord a portion of the Property, consisting of space on the Water Tower for 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 and Exhibit C, attached hereto and incorporated herein by this reference. Tenant may not add additional antennas or equipment on the Water Tower from that shown on Exhibit B without 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 serving its antennas and equipment. Upon 120 days prior written notice, Landlord shall have the right to require Tenant to relocate its utility wires, 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 another location within the Enclosure or Property, at Tenant’s expense. Enclosure refers to the security fence surrounding the Water Tower. Tenant shall complete the relocation of its antennas or equipment within one hundred and twenty (120) days of written notice from Landlord, except in the case of emergency, in which case Tenant shall relocate its antennas or equipment immediately upon receipt of written notice from Landlord. The relocation shall be at Tenant’s expense, unless the Landlord’s DESC DT Waukee Lease Agreement 2846876v4 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. Subject to Landlord’s prior written 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 the Property for ingress, egress and access to the Premises 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. 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's operations. 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. 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 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 ten 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 occurred. The Commencement 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 DESC DT Waukee Lease Agreement 2846876v4 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, 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 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. 5. Rent. Tenant shall pay Landlord, as rent, Twenty-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 Lease, and each year of each Renewal Term, by 3% per year. For the purposes of this Lease, all references to “year” shall be deemed to refer to the annual anniversary date of the commencement 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 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). 6. Option to Renew. Tenant shall have the option to renew this Lease for two additional five-year terms, each a ("Renewal Term"). This Lease shall automatically renew unless Tenant gives Landlord 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. DESC DT Waukee Lease Agreement 2846876v4 7. 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, transmission 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 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 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. 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. DESC DT Waukee Lease Agreement 2846876v4 (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 corrected, 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 interference cannot be eliminated with thirty (30) days after receipt of written notice of such interference, Landlord may terminate this Lease. 8. Antennas and Equipment. (a) Installation. Tenant shall have the right, at its expense, to erect and maintain on the Premises, improvements, personal property 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 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 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 governmental 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 DESC DT Waukee Lease Agreement 2846876v4 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 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 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 Premises 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. 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 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 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 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. DESC DT Waukee Lease Agreement 2846876v4 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 Landlord when due, and does not cure such default within ten (10) days after receipt of written notice from Landlord of such default; (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 the benefit of creditors; or (v) Tenant becomes insolvent. (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 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 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 Premises, 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 monthl y, 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 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 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 Lease but in no event DESC DT Waukee Lease Agreement 2846876v4 shall Tenant be entitled nor shall Landlord be responsible for any incidental or consequential damages including loss of profits. (d) 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 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 from the Tenant to Landlord on the first day of the month following the incurring of the respective expenses. (e) 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/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 of Landlord's termination pursuant to this subsection shall be effective upon receipt of such notice by Tenant. (f) Liquidated Damages. 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, 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 Landlo rd. In such event, Tenant shall promptly remove the Antenna Facilities from the Premises and shall restore the Premises 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 shall be DESC DT Waukee Lease Agreement 2846876v4 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. 12. 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. 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 att ributable 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. (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 Five Million Dollars ($5,000,000) 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 $1,000,000 for each accident. Landlord will maintain insurance required by State law. (b) Tenant's Property. Tenant will keep in force for the duration of the 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. DESC DT Waukee Lease Agreement 2846876v4 (c) Contractors/Subcontractors of Tenant. Tenant shall require that each and every one of its contractors and their subcontractors who perform work 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 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. Tenant shall provide Landlord with thirty (30) days’ prior written notice of cancellation of its commercial general liability insurance policy. (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 line carriers shall be rated A-VII or better by A.M. Best Company. 16. Hold Harmless. Landlord shall not at any time be liable for injury 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 Premises 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, arising 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. 17. 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: Verizon Wireless (VAW) LLC d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate DESC DT Waukee Lease Agreement 2846876v4 If to the Landlord, to: City Administrator City of Waukee 230 W. Hickman Rd Waukee, Iowa 50263 18. 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. 19. Environmental Representations 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 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 seq.; 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 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 damage resulting from Tenant’s use of the Premises. DESC DT Waukee Lease Agreement 2846876v4 20. 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 Premises 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 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. 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, 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. 23. 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, 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. § 365, and, accordingly, shall be subject to the provisions of subsections (d)(3) and (d)(4) of said Section 365. 24. Force Majeure. 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 provis ion because damage to the Property has hindered, delayed, or prevented Tenant from using the Premises, Tenant may immediately erect any temporary facilities on the Property necessary to resume service, provided that such temporary facilities do not unreaso nably 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 DESC DT Waukee Lease Agreement 2846876v4 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. 25. 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 Tena nt 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 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. Obligations Continue. The obligations of Landlord and Tenant continue beyond the term and or termination of this Lease as it pertains to indemnification and environmental 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 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. (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. DESC DT Waukee Lease Agreement 2846876v4 (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 of Iowa. (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 ex ecuted by the party against whom the same is sought to be asserted. Signatures on following page Remainder of page intentionally left blank DESC DT Waukee Lease Agreement 2846876v4 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. LANDLORD: CITY OF WAUKEE By: ______________________________ William F. Peard, Mayor Attest: _____________________________ Tim Moerman, City Administrator STATE OF IOWA ) ) ss. COUNTY OF DALLAS ) On this ____ day of _______________, 20___, before me, the undersigned, a Notary Public in and for the State 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 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. _________ adopted by the City Council, under Roll Call of the City Council on the ____ day of _______________, 20___, 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. ______________________________ Notary Public in and for the State of Iowa My Commission expires ________ DESC DT Waukee Lease Agreement 2846876v4 TENANT: VERIZON WIRELESS (VAW) LLC D/B/A VERIZON WIRELESS By: __________________________ Name: Phillip J. French Title: Executive 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 ) On _____________ before me, __________________, a Notary Public, personally appeared 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 that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ______________________________ Signature of Notary Public DESC DT Waukee Lease Agreement 2846876v4 Exhibit A Legal Description of Property on Which Water Tower is Located Deed Book 430 Page 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 Ft.; 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 Ft. 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; 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 NW1/4 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 Corner, Sec.6, Twp.78N, Rng.26W of the 5th P.M., Dallas County, Iowa; thence South 255.2'; thence West 211.2'; 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 Lot B in NW1/4 of Section 5, Twp.78N, Rng.26W of the 5th P.M., Dallas County, Iowa. Deed Book 521 Page 273 Beginning at a point 780.0 feet S 0º01' East and 33.0 Feet N 90º 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 59º00'30" 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 89º53' 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 Page 721 The following described real estate situated in Dallas County, Iowa, to wit: 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. DESC DT Waukee Lease Agreement 2846876v4 Exhibit B Site Plan for Tenant’s Antenna Facilities on the Property DESC DT Waukee Lease Agreement 2846876v4 Exhibit C Site Plan for Enclosure Equipment Building and Access and Utility Locations DESC DT Waukee Lease Agreement 2846876v4 Exhibit D Tenant Utility Service on Property