Ordinance 2016-37 UNITED CITY OF YORKVILLE
KENDALL COUNTY, ILLINOIS
ORDINANCE NO. 2016-37
AN ORDINANCE OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY,
ILLINOIS, APPROVING A WATER TOWER LEASE AGREEMENT WITH
TCG SOLUTIONS, INC.
(Water Towers at 4600 North Bridge Street, 610 Tower Lane,
3299 Lehman Crossing, 2224 Tremont and Route 71)
Passed by the City Council of the
United City of Yorkville, Kendall County, Illinois
This 10`x'day of May, 2016
Published in pamphlet form by the
authority of the Mayor and City Council
of the United City of Yorkville,Kendall
County, Illinois on October 4, 2016.
Ordinance No. 2016-
AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY,
ILLINOIS,APPROVING A WATER TOWER LEASE AGREEMENT WITH
TCG SOLUTIONS,INC.
(Water Towers at 4600 North Bridge Street,610 Tower Lane,
3299 Lehman Crossing,2224 Tremont and Route 71)
WHEREAS, the United City of Yorkville (the "City")is a duly organized, and
validly existing non home-rule municipality of the State of Illinois under the 1970 Illinois
Constitution and the laws of the State of Illinois; and,
WHEREAS, the City has the authority to enter into leases of City property
pursuant to section 11-76-1 of the Illinois Municipal Code(65 ILCS 5/11-76-1); and,
WHEREAS, TCG Solutions, Inc. has requested to lease a portion of the property
adjacent and on the water towers at 4600 North Bridge Street, 610 Tower Lane, 3299 Lehman
Crossing, 2224 Tremont and Route 71 to install telecommunications equipment and antenna
structures on the water towers with easement rights for access to the properties and
towers; and,
WHEREAS, the City pursuant to the above authority hereby finds that entering
into this lease agreement is in the best interest of the City.
NOW, THEREFORE, BE IT ORDAINED, by the Mayor and City Council of
the United City of Yorkville, Kendall County, Illinois, as follows:
Section 1: The Corporate Authorities of the United City of Yorkville hereby find
as facts all of the recitals in the preamble of this Ordinance and incorporate them as
though fully set forth herein.
Section 2: That the lease agreement between the United City of Yorkville and
TCG Solutions, Inc. entitled,Lease Agreement, ("Lease Agreement") attached hereto and
incorporated herein as Exhibit A is hereby approved and the Mayor and City Clerk are
hereby authorized to execute and deliver said Lease Agreement.
Section 3: That the officials, officers, and employees of the United City of
Yorkville are hereby authorized to take such further actions as are necessary to carry out
the intent and purpose of this Ordinance and the Lease Agreement.
Section 4: That this ordinance shall be in full force and effect from and after its
passage, approval and publication in pamphlet form as provided by law.
Ordinance No.2016-37
Page 2
Passed by the City Council of the United City of Yorkville, Kendall County,
Illinois, this day of 92016.
CITY CLERK
CARLO COLOSIMO ` KEN KOCH
JACKIE MILSCHEWSKI LARRY KOT
CHRIS FUNKHOUSER JOEL FRIEDERS
DIANE TEELING SEAVER TARULIS y
Approved by me, as Mayor of the United City of Yorkville, Kendall County,
Illinois, this a q day of 6F�P-1 Eiy 666, 92016.
MAYOR
Ordinance No.2016-3'7
Page 3
LEASE AGREEMENT
THIS LEASE AGREEMENT entered into as of this IQ day of M� , 2016 by and between the
UNITED CITY OF YORKVILLE ("Landlord") and TCG Solutions, Inc. ("Tenant") located
at ; and,
WHEREAS, Landlord is the owner in fee simple of a parcels of land located in the UNITED CITY OF
YORKVILLE, Kendall County, Illinois legally described on the attached Exhibits "A" (the "Premises"), on
which municipal water towers (the "Water Tower") are located. The Water Towers are located on the Premises
at 4600 N Bridge St, 610 Tower Lane, 3299 Lehman Crossing, 2224 Tremont, and Rt. 71, generally west of the
of the Wildwood subdivisions (see Exhibit"A" for full legal description); and,
WHEREAS, Tenant desires to lease space on the top of the Water Tower described below for the
installation and operation of certain Antenna facilities, which may include Antenna, connecting cables and
appurtenances (collectively, "Antenna Facilities") for use in connection with its communications business; and,
WHEREAS,the parties are entering into this Lease on the terms and conditions set forth below.
NOW,THEREFORE,in consideration of their mutual covenants, the Landlord and Tenant agree as follows:
1. Leased Premises. Landlord leases to Tenant and Tenant leases from Landlord a portion of the Premises,
consisting of space on the ground (the "Land") for a Base Station and on the top ("Dome") of the Water Tower,
for the Tenant's Antenna Facilities. Tenant intends to locate its Antenna Facilities as described more fully on the
attached Exhibit "B". Tenant may not add additional equipment and/or Antenna facilities from that shown on
Exhibit "B" without the prior written approval of the Landlord, except that upon Landlord's prior written
consent which shall not unreasonably be withheld, conditioned, or delayed, Tenant shall have the right to: (a)
make additions, alternations or improvements to Tenant's equipment housed within the Base Station; and (b)
replace any or all of its equipment installed on or about the Dome with replacement equipment of a substantially
similar kind, which is reinstalled in substantially the same place and position, and is of substantially the same
size and weight as the replaced equipment.
2. Term. This Lease has been executed this a�l� day of(SE 2016 (hereinafter referred to as "The Execution
Date", but Tenant shall immediately be obligated within 60 days to commence payment of the full rental
amount due hereunder; and the term of this Lease shall end on midnight on the last day of the month in which
the forth (4th) anniversary of the Execution Date occurs (hereinafter referred to as "The Initial Term"). Tenant
may extend the Lease, on the same terms, for three (3) "additional terms" of four (4) years each, (hereinafter
"Extended Terms"') automatically, unless Tenant gives Landlord written notice within ninety (90) days of the
end of the Initial Term or any Extended Terms stating Tenant will not extend further.
3. Rent.
a. Tenant shall pay Landlord as monthly rent for the Premises the sum of fifty dollars ($50) per post
per water tower ("Base Rent") utilized by Tenant for the term of the Lease in advance to the
Landlord at the address above.
b. The monthly rent shall increase on each anniversary of the Execution Date by an amount equal to 3
percent(3%).
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C. Tenant shall pay Landlord a late payment charge equal to 3% of the late payment for any payment
not paid when due. Any amounts not paid when due shall bear interest until paid at the rate of I%
per month.
d. Upon execution of this Lease by Tenant, Tenant shall reimburse Landlord for its reasonable costs
and expenses, including any engineering and legal fees incurred by Landlord in connection with the
negotiation of this Lease, in an amount of$1000.00.
e. If this Lease is terminated at a time other than on the last day of the month, Rent shall be prorated as
of the date of termination and, in the event of termination for any reason other than nonpayment of
Rent, all prepaid Rents shall be refunded to the Tenant, except as otherwise provided herein.
f. Base Rent and Additional Rent and all other considerations to be paid or provided by Tenant to
Landlord shall constitute Rent and shall be paid or provided without offset, except as provided in.
Section 17b, below.
4. Use of Premises.
a. Tenant shall use the Premises for the installation, operation, and maintenance of its Antenna Facilities
for the transmission, reception and operation of a communications system and uses incidental thereto and for no
other uses. Landlord may permit others to use other portions of the Water Tower. Tenant may attach antennae to
available posts on the water tower in a non-permanent manner, as approved by the Director of Public Works.
Tenant shall provide to Landlord, at Tenant's expense, an evaluation indicating that the antenna and any
additional antenna array will not interfere with any existing antenna or any proposed antenna.
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 use, operation, maintenance, construction and/or installation of the
antenna facilities and/or the Premises. Landlord agrees to cooperate reasonably with Tenant in obtaining, at
Tenant's expense (including reimbursement of Landlord's reasonable attorney and administrative fees), any
federal licenses and permits required for or substantially required by Tenant's use of the Premises.
C. (1) The Tenant shall remove its Antenna Facilities from the Premises upon termination of the Lease.
Such removal shall be done in a workmanlike and careful manner and without interference or damage to any
other equipment, structures or operations on the Premises, including use of the Premises by Landlord or any of
Landlord's assignees or lessees. If, however, Tenant requests permission not to remove all or a portion of the
improvements, and Landlord consents to such non-removal, title to the affected improvements shall thereupon
transfer to Landlord and the same thereafter shall be the sole and entire property of Landlord, and Tenant shall
be relieved of its duty to otherwise remove same.
(2) Upon removal of the improvements (or portions thereof) as provided above, Tenant shall restore the
affected area of the Premises to the reasonable satisfaction of Landlord ordinary wear and tear excepted.
(3) All costs and expenses for the removal and restoration to be performed by Tenant pursuant to
subparts (1) and (2) above shall be borne by tenant, and Tenant shall hold Landlord harmless from any portion
thereof.
d. Tenant agrees that all installations and constructions described in this Lease shall be completed promptly
in a neat, workmanlike manner, consistent with good engineering practices and in compliance with all
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applicable codes and regulations. All costs of the installation, including, but not limited, the cost of extending of
Landlord's electrical service to Tenant's equipment, shall be paid by the Tenant.
e. When the Tenant does any work on the Premises, it shall, at its own expense, remove any obstructions
there from and restore the Premises to as good a condition as existed before the work was undertaken, unless
otherwise directed by Landlord.
5. Construction Standards Tenant undertakes full and complete responsibility at all times hereafter for the
expenses of, and quality of, construction and compliance with all applicable Federal, State and Local laws,
regulations, and codes, code requirements and regulations of governmental authorities having jurisdiction over
the construction including but not limited to compliance with acts affecting construction of public buildings and
service areas used by public employees, and Tenant agrees to remedy or correct any deficiencies with such
compliance. The construction shall be processed pursuant to permit and conducted by authorized and licensed
personnel and shall be performed in compliance with Local and State requirements for construction activities
upon public property. Tenant shall be responsible for all permit costs. Prior to the issuance of building permits,
Tenant's contractor shall obtain, maintain and provide Landlord with evidence of each of the insurance
coverage's specified in Section 22 of this Lease, in at least the amounts so specified. The Antenna Facilities and
the Base Station shall be installed on the Premises in a good and workmanlike manner without the attachment of
any construction liens. Landlord reserves the right to require Tenant to paint the Antenna Facilities in a manner
consistent with the color of the Water Tower or to otherwise reasonably shield the Antenna Facilities from
view.
6. Installation of Equipment.
a. Tenant shall have the right, at its sole cost and expense, to install, operate and maintain on the Premises,
in accordance with good engineering practices and with all applicable FCC rules and regulations, its Antenna
facilities. Tenant shall, at its sole cost and expense, comply with the radio frequency exposure limits
promulgated under 47 C.F.R. 1.1307, et seq. as amended from time to time of the Code of Federal Regulations.
Tenant may, at its sole discretion, modify or cause modifications of its equipment in order to ensure that its
operations are in compliance with said regulations.
b. Tenant's installation of all such Antenna Facilities shall be done according to plans approved by
Landlord, which approval shall not be arbitrarily withheld, conditioned or delayed. Any damage done to the
Land, the Water Tower or the Dome during installation and/or during operations shall be repaired or replaced
immediately at Tenant's expense and to Landlord's reasonable satisfaction. In connection with the installation
and operation of the Antenna Facilities, Tenant shall not make any penetrations of the Dome without Landlord's
prior written consent, which shall not be arbitrarily withheld, conditioned or delayed. All Dome penetrations
that may be permitted by Landlord shall be undertaken only under the supervision of Landlord's engineer or
other designated agent. Tenant shall pay all costs and expenses in relation to maintaining the integrity of
Landlord's Water Tower in connection with Tenant's installation and operations of the Antenna Facilities
C. The Tenant shall complete the installation of the Antenna Facilities and Base Station as approved by the
City within ninety(90) days after the Execution Date. The Tenant shall provide Landlord with as-built drawings
of the Antenna Facilities and the Base Station installed on the Premises, which show the actual location of all
equipment and improvements within thirty (30) days after completion of construction. Said drawings shall be
accompanied by a complete and detailed inventory of all equipment,personal property, and Antenna Facilities.
7. Landlord's Right to Use Tenant shall allow Landlord, at no cost to Landlord, to locate, place and use
Landlord's communications facilities (antennas, transmitters, receivers, and support equipment) on any of
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Tenant's mounting brackets or other facilities installed on the Water Tower which are capable of
accommodating Landlord's additional antennas or related facilities without interfering with Tenant's Antenna
facilities and without eliminating Tenant's right to expand its Antenna Facilities as permitted in Section 4,
above. Tenant shall cooperate with Landlord in connection with locating and placing Landlord's antennas and
other facilities on Tenant's Antenna Facilities on the Water Tower, at no expense to Tenant.
8. Equipment Upgrade. Tenant may update or replace the Antenna Facilities from time to time with the prior
written approval of the Landlord, which approval shall not be unreasonably withheld, conditioned, or delayed,
provided that the replacement facilities installed on the Dome are not greater in number or size than the existing
facilities. Any change in their location on the Water Tower shall be approved in writing by Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed. If the upgrade involves additional
equipment installed on the Dome, or a change in location on the Water Tower, 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.
9. Maintenance.
a. Tenant shall, at its own expense, maintain its Base Station and Antenna Facilities attached to the Dome
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 and so as not to interfere with the use of the Dome, the Water
Tower, related facilities or other equipment of other tenants.
b. Tenant shall have sole responsibility for the maintenance, repair, and security of its equipment, personal
property, Antenna Facilities, and leasehold improvements, and shall keep the same in good repair and condition
during the Lease term.
C. 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.
d. In the event the Landlord or any other tenant undertakes painting, construction or other alterations on the
Water Tower, Tenant shall take reasonable measures at Tenant's cost to cover Tenant's equipment, personal
property or Antenna Facilities and protect such from paint and debris fallout which may occur during the
painting, construction or alteration process.
e. If the Landlord determines that it is necessary and advisable to raise the height of the Water Tower for
municipal purposes, the Landlord shall give the Tenant ninety(90) days written notice prior to the Execution of
the construction to raise the Water Tower and, the Landlord shall coordinate the raising of the Water Tower to
allow the Tenant to protect, modify and/or move its Antenna Facilities as required by the raising of the Water
Tower. The Landlord shall not be liable or responsible for the costs to the Tenant for the protection,
modification, and/or moving of the antenna and Antenna Facilities.
f. Tenant acknowledges that, from time to time, Landlord will undertake painting, construction or other
alterations to the Towers. Landlord shall use reasonable efforts to notify Tenant at least thirty days prior to the
end of any fiscal year during which Landlord has planned and budgeted for Tower painting or construction in
the subsequent year and Land lord shall give Tenant no less than ninety days written notice prior to
commencement of such activities. Tenant shall take reasonable measures, at its cost, to cover the facilities or
Tenant's other \equipment or personal property and to protect such from paint and debris falling which may
occur during the painting, construction or alteration process. In the event Landlord determines Tenant's
facilities and/or equipment must be temporarily removed in order to undertake such painting, construction or
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alterations, Tenant shall remove the facilities and/or equipment at its sole cost and expense during said painting,
construction or alterations. Tenant shall then be permitted to install temporary facilities upon the Landlord's
property near the Premises, if necessary, during any such work. Such temporary facilities may include a Cell on
Wheels (COW). Tenant and Landlord shall reasonably cooperate with each other regarding the placement of
the COW on the property. Upon completion of any repainting by Landlord, Tenant agrees to have its
equipment located on the Tower painted to match the then existing paint of the Tower.
10. Premises Access.
a. Tenant shall have access to the Premises and the Water Tower by means reasonably designated by
Landlord, subject to notice requirements to Landlord in IOb,below.
b. Tenant shall have access to the Base Station at all times with proper notice to the Landlord. Tenant shall
have access to the Water Tower only upon twenty-four(24) hour notice to the Public Works Director, except in
emergencies, in which case the Public Works Director, or designee shall respond within 2 hours to the base
station to accompany the tenant. All costs of this service shall be the sole responsibility of the tenant and will
be billed at a two (2) hour minimum call out from the time of the call to the Landlord. Any time spent after the
2 hours shall be billed by the hour in 15 minute increments. The rate for this service is $75.00/hr.
11. Co-Location. The Tenant understands that the Tenant may be co-locating on the Water Tower with other
telecommunications providers.
12. Utilities. Tenant shall pay the estimated cost of electricity used by Tenant at the Premises to Landlord
monthly in advance as payment in addition to the Base Rent. Initially, Tenant's estimated cost of electricity
shall be one-hundred twenty dollars ($120) per year payable in equal monthly installments of ten dollars ($10)
each together with the payment of Rent. The Tenant shall be allowed to utilize the Landlord's existing 110 volt
outlets for electrical service on condition that the Tenant's use of an existing outlet does not interfere with the
Landlord's use of such outlet. The Tenant further expressly acknowledges that the Landlord does not guarantee
uninterrupted electrical service, and Landlord shall not be responsible for electrical outages or interruptions in
electrical service used by the Tenant.
13. License Fees. Tenant shall pay, as they become due and payable, all local permit fees and state and federal
fees, charges,taxes and expenses required for licenses and/or permits required for or occasioned by Tenant's use
of the premises.
14. Testing: Approvals: Compliance with Laws.
a. Tenant's use of the Premises is contingent upon its obtaining all certificates, permits, zoning, and other
approvals that may be required by any federal, state or local authority including the Landlord. Tenant shall
erect, maintain and operate its Antenna Facilities in accordance with site standards, statutes, ordinances, rules
and regulations now in effect or that may be issued hereafter by the Federal Communications Commission or
any other governing bodies,
b. Tenant may conduct such tests and investigations on the Water Tower and the Premises as it deems
necessary in order to determine if the Dome and the Premises are suitable for Tenant's use.
15. Interference.
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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 existing 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 without further liability, except for payments of amounts due at the
time the Lease is terminated. Landlord, at all times during this Lease, reserves the right to take any action it
deems necessary, upon written notice, in its sole discretion, to repair, maintain, alter or improve the Premises in
connection with its operations as may be necessary, including leasing parts of the Water Tower to others
provided that such activities and additional tenants shall not disturb or interfere with Tenant's rights hereunder
and Tenant's ability to operate its Antenna Facilities at all times, except that Tenant shall reasonably cooperate
with any other prior or subsequent Tenants as required.
b. Before approving the placement of Antenna Facilities, Tenant shall provide to Landlord, at Tenant's
expense, an evaluation indicating whether Tenant's intended use will interfere with any existing
communications facilities on the Water Tower.
c 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 of
the Landlord requests a lease and/or permission to place any type of additional Antenna or transmission facility
on the Water Towers the procedures of Subsection d, below, shall govern to determine whether such Antenna or
transmission facility will interfere with Tenant's transmission operations,
d. If Landlord receives any such request, Landlord shall submit or cause to be submitted, 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 reasonably claimed to be of a proprietary nature by the third party in good faith. 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 the 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 Landlord modifies the proposal
in a manner determined to Tenant's reasonable satisfaction, to substantially reduce the interference. In that case,
Landlord may proceed with the proposal. A governmental unit with jurisdiction and the Landlord 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.
e. Tenant's use of the Land and operation of its Antenna Facilities shall not interfere with the use and
operation of other communication facilities on the Water Tower which pre-existed Tenant's Antenna Facilities.
If Tenant's Antenna Facilities cause interference with preexisting Antenna Facilities, Tenant shall take all
measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated
in a reasonable time, Tenant shall immediately cease operating its facility until the interference has been
eliminated. If the interference cannot be eliminated within ninety(90) days, Landlord may terminate this Lease.
In all cases, the most recent Tenant Antenna Facilities shall be responsible for curing any interference caused by
the installation and/or operation of its antenna or other telecommunication devices on the Water Tower.
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16. Default and Remedies. In the event of a default that is not timely cured, Landlord may terminate this Lease
upon written notice to the Tenant and/or exercise any other right it may have under this Lease or by operation of
law.
a. It shall be a default if Tenant defaults in the payment or provision of Rent or any other sums or services
to Landlord when due, and does not cure such default within thirty (30) days after written notice to Landlord; or
if 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 Landlord specifying the default complained of
(provided that Tenant should be entitled to a reasonable extended period of time in the event Tenant has in good
faith commenced and continues to take all necessary action to cure the default but is unable to do so within
thirty (30) days, provided Tenant continues to pay the current Rent) or provide services when due); or if Tenant
abandons or vacates the Premises; or if Tenant is adjudicated as bankrupt or makes any assignment for the
benefit of creditors; or if Tenant becomes insolvent.
b. In the event of a default, 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 there from, and either(i) declare this Lease at an end, in which event Tenant shall
immediately remove the Antenna Facilities (and proceed as set forth in paragraph 4(c)) 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)
any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to
perform its obligations.
C. 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 made 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.
d. 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 therefore, including reasonable attorney fees.
17. Cure of Default.
a. In the event of any default of this Lease by Tenant, the Landlord may at any time, after written 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 Additional Rent and shall be due from the Tenant to Landlord on the first day of
the month following the incurring of the respective expenses.
b. In the event of any default of this Lease by Landlord, Tenant may at any time, after notice, cure the
default for the account of and at the expense of Landlord. If Tenant 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
Tenant's rights under this Agreement, the sums so paid by Tenant, with all interest, costs and damages may be
deducted or offset by Tenant against the Base Rent payable on the first day of the month or months following
the incurring of the respective expenses,
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18. Optional Termination
In addition to the termination rights set forth in other provisions of this Agreement, this Lease may be
terminated upon written notice:
(a) by Tenant pursuant to Section 2 of this Lease, if Tenant is unable to obtain or maintain any license,
permit or other governmental approval necessary for the construction and/or operation of the intended Antenna
Facilities or Tenants' business prior to the Execution Date with no further liability except as specified in Section
2 of this Lease; or
(b) by Tenant if, due to uncorrectable interference in technology which renders the Premises no longer
usable or necessary in Tenant's business, and upon presentation of documented proof to the Landlord thereof,
subject to the liquidated damages specified in Section 19 below.
(c) by Landlord if, it determines, in its sole discretion and for any reason, to discontinue use of and to
dismantle the Water Tower, provided, that Tenant at its option shall be permitted to continue its occupancy and
use of the Premises until not less than thirty (30) days prior to the scheduled demolition date of the Water
Tower, unless the Tenant's continued use of the Premises would create a compelling health, safety or welfare
issue; or
(d) by Landlord if, it determines that the Dome/Water Tower is structurally unsound due to the age of the
structure, damage or destruction of all or part of the Water Tower from any source, or other factors relating to
the safe condition of the Dome and/or Water Tower, or compelling health, safety or welfare reasons, provided
that there are no alternative solutions,but to require the removal of the Antenna Facilities; or
(e) by either party, if Tenant loses its license to provide wireless service for any reason, including, but not
limited to, non-renewal, expiration, or cancellation of its license, provided that termination by Tenant pursuant
to this subsection shall be subject to liquidated damages as specified in Section 19 below.
19. Termination. Notice of termination pursuant to Section 18 shall be given in writing by certified mail,
return receipt requested, and shall be effective three days after mailing. All rentals paid for the Lease of the
Premises prior to said termination date shall be retained by Landlord. Upon termination, this Lease shall
become null and void and the parties shall have no further obligations to each other, except for that any claim
for indemnity or defense which occurs prior to termination shall survive as shall Tenant obligations to
reimbursement and reuse of the tower.
20. 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 providing thirty (30) days' notice to Landlord. 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, except for reasonable wear and tear. 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 entitled to the reimbursement of any Rent prepaid by Tenant.
Landlord shall have no obligation to repair any damage to any portion of the Premises.
21. Condemnation. In the event the Premises are taken by eminent domain, this Lease shall terminate as of the
date title to the Premises vests in the condemning authority. In event a portion of the Premises is taken by
eminent domain, such that Tenant's Antenna Facilities may no longer be supported and operated. Tenant shall
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have the right to terminate this Lease as of said date of title transfer, by giving thirty (30) days written notice to
the Landlord. In the event of any taking under the power of eminent domain, Tenant shall not be entitled to any
portion of the award paid for the taking (except as set forth below) and the Landlord shall receive full amount of
such award. Tenant shall hereby expressly waives any right or claim to any portion thereof based on the fee of
the Premises. 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 the
diminution in value of Tenant's leasehold estate or any and all damage to Tenant's business and any costs or
expenses incurred by Tenant in moving/removing its equipment, personal property, Antenna Facilities, and
leasehold improvements.
22. Indemnity and Insurance.
a. Disclaimer of Liability: Landlord shall not at any time be liable for injury or damage occurring to any
person or property arising out of Tenant's construction, maintenance, repair, use, operation, condition or
dismantling of the Premises or Tenant's Antenna Facilities, unless caused by the negligent and intentional acts
or omissions of Landlord or its agents or employees,
b. Tenant's Indemnification. Unless caused by the negligent or intentional acts or omissions of Landlord
or its agents or employees, Tenant shall, at its sole cost and expense, indemnify and hold harmless Landlord and
its respective officers, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred
to as "Indemnitees"), from and against
i. Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and
expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and
consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees by reason
of any act or omission of Tenant, its personnel, employees, agents, contractors or subcontractors,
resulting in personal injury,bodily injury, sickness, disease or death to any person or damage to, loss of
or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use
of any trademark, trade name, copyright, patent, service mark or arty other right of any person, firm or
corporation., which may arise out of or be in any way connected with the construction, installation,
operation, maintenance, use or condition of the Premises or Tenant's Antenna Facilities or the Tenant's
failure to comply with any federal, state or local statute, ordinance or regulation.
ii. Any and all liabilities, obligations, damages,penalties, claims, liens, costs, charges, losses and
expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and
other consultants), which are imposed upon, incurred by or asserted against the Indemnitees by reason of
any claim or lien arising out of work, labor, materials or supplies provided or supplied to Tenant, its
contractors or subcontractors, for the installation, construction, operation, maintenance or use of the
premises or Tenant's Antenna Facilities, and, upon the written request of Landlord, Tenant shall cause
such claim or lien covering Landlord's property to be discharged or bonded within thirty (30) days
following such request,
iii. Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and
expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and
consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees by reason
of any financing or securities offering by Tenant or its affiliates for violations of the common law or any
laws, statutes, or regulations of the State of Illinois or United States, including those of the Federal
Securities and Exchange Commission, whether by Tenant or otherwise.
9
iv. Tenant's obligation to indemnify Indemnitees under this Lease shall extend to claims, losses,
and other matters covered hereunder that are contributed to by the negligence of one or more
Indemnitees.
C. Assumption of Risk. Tenant undertakes and assumes for its officers, agents, affiliates, contractors and
subcontractors and employees (collectively "Tenant" for the purpose of this section), all risk of inherent
dangerous conditions, if any, on or about the Premises.
d. Defense of Indemnities. In the event any action or proceeding shall be brought against the Indemnities
by reason of any matter for which the Indemnities are indemnified hereunder, Tenant shall, upon notice from
any of the Indemnities, at Tenant's sole cost and expense, resist and defend the same with legal counsel selected
by Tenant; provided however, that Tenant shall not admit liability in any such matter on behalf of the
Indemnities without the written consent of Landlord and provided further that Indemnities shall not admit
liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified
hereunder, without the prior written consent of Tenant.
e. Notice. Cooperation and Expenses. Landlord shall give Tenant prompt notice of the making of any claim
or the Execution of any action, suit or other proceeding covered by the provisions of this paragraph. Nothing
herein shall be deemed to prevent Landlord from cooperating with Tenant and participating in the defense of
any litigation by Landlord's own counsel. Tenant shall pay all expenses incurred by Landlord in response to any
such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as reasonable
attorney fees and shall also include the reasonable value of any services rendered by the Landlord's attorney,
and the actual expenses of Landlord's agents, employees or expert witnesses, and disbursements and liabilities
assumed by Landlord in connection with such suits, actions or proceedings but shall not include attorneys' fees
for services that are unnecessarily duplicative of services provided Landlord by Tenant. If Tenant requests
Landlord to assist it in such defense then Tenant shall pay all expenses incurred by Landlord in response
thereto, including defending itself with regard to any such actions, suits or proceedings. These expenses shall
include all out-of-pocket expenses such as reasonable attorney fees and shall also include the costs of any
services rendered by the Landlord's attorney, and the actual expenses of Landlord's agents, employees or expert
witnesses, and disbursements and liabilities assumed by Landlord in connection with such suits, actions or
proceedings,
f. Insurance. During the term of the Lease, Tenant shall (unless optional as set forth below) maintain, or cause
to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of
insurance:
i. Worker's compensation insurance meeting applicable statutory requirements and employer's
liability insurance with minimum$1,000,000 for each accident.
ii. Comprehensive commercial general liability insurance with minimum limits of
$1,000,000, with a $2,000,000 minimum umbrella as the combined single limit for each occurrence of
bodily injury,personal injury and property damage. The policy shall provide blanket contractual liability
insurance for all written contracts, and shall include coverage for products and completed operations
liability, independent contractor's liability, coverage for property damage from perils of explosion,
collapse or damage to underground utilities, commonly known as XCU coverage.
iii. Automobile liability insurance covering all owned, hired, and non-owned vehicles in use
by Tenant, its employees and agents, with personal protection insurance and property protection
10
insurance to comply with the provisions of state law with minimum limits of $1,000,000 as the
combined single limit occurrence for bodily injury, and property damage;
iv. At the start of and during the period of any construction, builders all risk insurance,
together with an installation floater or equivalent property coverage covering cables, materials,
machinery and supplies of any nature whatsoever which are to be used in or incidental to the installation
of the Antenna Facilities. Upon completion of the installation of the Antenna Facilities, Tenant shall
substitute for the foregoing insurance with policies of fire, extended coverage and vandalism and
malicious mischief insurance on the Antenna Facilities. The amount of insurance at all times shall be
representative of the insurable values installed or constructed.
V. At Tenant's option, Business interruption insurance coverage in an amount sufficient to
cover such loss of revenues, for the period of time which it would take, under normal circumstances, to
repair or replace that part(s) of the Antenna Facilities which is damaged and caused the loss of revenue.
vi. All policies other than those for Worker's Compensation shall be written on an
occurrence and not on a claims made basis.
vii. The coverage amounts set forth above may be met by a combination of underlying and
umbrella policies so long as in combination the limits equal or exceed those stated.
h. Named Insured's. All policies, except for business interruption and worker's compensation policies, shall
specifically name Landlord, including its officials, employees, agents and contractors, as their respective
interests may appear as additional insured's (herein referred to as the "Additional Insured's"). Each policy
which is to be endorsed to add Additional Insured's hereunder, shall contain cross-liability wording, as follows.
"In the event of a claim being made hereunder by one insured for which another is or may be
liable, then this policy shall cover such insured against whom a claim is or may be made in the same
manner as if separate policies had been issued to each insured hereunder. "
i. Evidence of Insurance, Certificates of insurance for each insurance policy required to be obtained by Tenant
in compliance with this paragraph, along with written evidence of payment of required premiums 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.
j. Cancellation of Policies of Insurance. All insurance policies maintained pursuant to this Lease shall contain
the following endorsement:
"At least thirty (30) days prior written notice shall be given to Landlord by the insurer of
any intention not to renew such policy or to cancel, replace or materially alter same, such notice
to be given by registered mail to the parties named in this paragraph of the Lease."
k. Insurance Companies. All insurance shall be effected under valid and enforceable policies, insured by
insurers licensed to do business by the State of Illinois or surplus line carriers on the State of Illinois Insurance
Commissioner's approved list of companies qualified to do business in the State of Illinois. All insurance
carriers and surplus line carriers shall be rated A- or better by A.M. Best Company, or the highest available
rating.
it
1. Deductibles. All insurance policies may be written with deductibles, not to exceed $1000 unless approved in
advance by Landlord, Tenant agrees to indemnify and save harmless Landlord, the Indemnities and Additional
Insured's from and against the payment of any deductible and from the payment of any premium on any
insurance policy required to be furnished by this Lease,
m. Contractor. 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, workers' compensation, comprehensive public
liability and automobile liability insurance coverage's of the type which Tenant is required to obtain under the
terms of this paragraph with appropriate limits of insurance. The Landlord shall also be named as an additional
insured on such policies.
n. Review of Limits. At Landlord's option, no more than twice during each term of this Lease, the parties shall
mutually and in good faith review the insurance coverage's to be carried by Tenant. If Landlord determines that
higher limits of coverage are necessary to protect the interests of Landlord or the additional insureds, Tenant
shall be so notified, and the parties shall mutually agree upon the additional limits of insurance to be provided at
the Tenant's sole cost and expense. If the parties are unable to reach an agreement on the modification of the
limits of the insurance, the parties shall mutually agree upon a person in the insurance industry within thirty
(30) days from the written request of either party to determine what are the standard limits for insurance of the
type specified in substantially similar circumstances.
o. Primary Coverage. The Tenant's insurance coverage shall be primary as respects the Landlord, its
officials, agents and employees. Any insurance or self-insurance maintained by the Landlord, its officials,
agents, and employees shall be excess of Tenant's insurance and shall not contribute with it.
p. Severability of Interests. The Tenant's insurance shall contain a Severability of Interests/Cross Liability
clause or language stating that Tenant's insurance shall apply separately to each insured against who claim is
made or suit it brought, except with respects to the limits of the insurer's liability.
23. Hazardous Substance Indemnification. Tenant represents and warrants that its use of the Premises herein
will not generate any hazardous substance, and it will not store or dispose on the premises nor transport to
or over the Premises any hazardous substance. Landlord represents that it has no knowledge of the
existence of any hazardous substance on, in, or under the Premises. Tenant further agrees to hold Landlord
harmless from and indemnify Landlord against any release of any such hazardous substance caused by
Tenant or its employees or agents and any damage, loss, or expense or liability resulting from such release
including all attorneys' fees, costs and penalties incurred as a result thereof.
24. Holding Over. Any holding over after the expiration of the term hereof, with the consent of the Landlord,
shall be construed to be a tenancy from month to month at one and one-half(1.5)times the Base Rent herein
specified (prorated on a monthly basis) and shall otherwise be for the term and on the conditions herein
specified, so far as applicable.
25. Subordination to Mortgage. Any mortgage now or subsequently placed upon any property of which the
Premises are a part shall be deemed to be prior in time and senior to the rights of the Tenant under this
Lease. Tenant shall subordinate all of its interest in the leasehold estate created by this Lease to the lien of
any such mortgage. Tenant shall, at Landlord's request, execute any additional documents necessary to
indicate this subordination,provided that such documents contain reasonable non-disturbance provisions.
26. Acceptance of Premises. Landlord represents that the Water Tower and the Premises are in compliance
with all applicable federal, state and local building, environmental and other applicable statutes, laws,
regulations, codes and orders, by taking possession of the Premises, Tenant accepts the Premises in the
12
condition existing as of the Execution Date. Except as set forth in this Section, Landlord makes no
representation or warranty with respect to the condition of the Premises and Landlord shall not be liable for
any latent or patent defect in the Premises.
27. Estoppel Certificate. Tenant shall, at any time and from time to time upon not less than ten (14) days prior
request by Landlord, deliver to Landlord a statement in writing certifying that (a) the Lease is unmodified
and in full force (or if there have been modifications, that the Lease is in full force as modified and identify
the modifications), (b) the dates to which rent and other charges have been paid; (c) so far as the person
making the certificate knows, Landlord is not in default under any provisions of the Lease (or if a default
exists, specifying the nature of the default); and(d) such other matters as Landlord may reasonably request.
28. 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; to the following
addresses:
If to Landlord, to: City Administrator With a copy to:
United City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
If to Tenant,to: TCG Solutions, Inc. With a copy to:
674 W. Veterans Parkway, Unit B
Yorkville, IL 60560
30. Assignment.
a. Tenant may not assign this Lease or sublet the Premises without the prior written consent of Landlord at any
time, except to an affiliate or successor of interest, but such assignment or sublease shall be effective as to
Landlord until written consent thereof is provided from Landlord.
b. Nothing in this Lease shall preclude Landlord from leasing other space for communications equipment to any
person or entity which may be in competition with Tenant, or any other party.
31. Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the parties, their
respective successors,personal representatives and assigns.
32. Non-Waiver. Failure of Landlord to insist on strict performance of any of the conditions, covenants, terms
or provisions of this Agreement or to exercise any of its rights hereunder shall not waive such rights, but
Landlord shall have the rights to enforce such rights at any time and take such action as might be lawful or
authorized hereunder, either in law or equity. The receipt of any sum paid by Tenant to Landlord after a breach
of this Agreement shall not be deemed a waiver of such breach unless expressly set forth in writing.
33. Taxes.
a. Tenant shall pay all real and personal property taxes (or payments in lieu of taxes) and assessments for
the Antenna Facilities, if any, which become due and payable during the term of these Lease improvements on
the Leased Premises, or Tenant's leasehold interest in the Leased Premises. All such payments shall be made,
and evidence of all such payments shall be provided Landlord, at least ten (10) days prior to the delinquency
date of the payment. Tenant shall pay all taxes on its personal property on the Premises.
13
b. Tenant shall indemnify Landlord from any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys,
expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against Tenant in
relation to the taxes owed or assessed on the Premises.
c. If the methods of taxation in effect at the Execution Date of the Lease are altered so that in lieu of or as a
substitute for any portion of the property taxes and special assessments now imposed on property there
is imposed a tax upon or against the rentals payable by Tenant to Landlord, Tenant shall pay those
amounts in the same manner as provided for the payment of real and personal property taxes.
34. Cooperation.
a. Landlord agrees to cooperate with Tenant in any efforts by Tenant to secure any governmental permits
necessary to use the Leased Premises as contemplated in this Lease, and to join in any application or other
document reasonably requested by Tenant within ten(10) days of Tenant's written request.
b. Each party shall provide to the other party a telephone number which will be answered by a
representative of such party twenty-four(24) hours a day for use only in the event of an emergency. Each party
agrees to notify the other party if there is a change in the emergency telephone number.
35. Entire Understanding / No Oral Modification. All prior understandings and agreements between the
parties are merged into this Lease, and this Lease may not be modified orally or in any manner other than by an
agreement in writing signed by both parties.
36. Miscellaneous Documentation.
a. Landlord agrees to furnish Tenant with certified copy of Landlord's resolutions authorizing execution of
this Lease.
b. Tenant represents that it is not delinquent in any taxes as contemplated by Section 11-42.1-1 of the
Illinois Municipal Code.
37. Lease Memorandum. Simultaneous with the execution of this Lease, the parties have executed a
Memorandum of Lease. Tenant may record the Memorandum of Lease. If Tenant's survey requires a correction
to the legal description rider attached to the Memorandum of Lease, the parties shall execute an Addendum to
Lease Agreement.
38. Miscellaneous.
a. Landlord and Tenant represent that each,respectively,has full right, power, and authority to execute this
Lease.
b. This Lease shall be construed in accordance with the laws of the State of Illinois.
C. 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.
14
d. The parties shall execute and Tenant shall record a memorandum of this Lease which shall contain the
initial term, Tenant's renewal options and such other basic provisions as Tenant may reasonably request.
This Lease was executed as of the date first set forth above.
LANDLORD:
United Ci of Yorkville
B Y 0&
It r
Attest by:
Its Clerk
TENANT:
TCG Solutions, Inc.
By: 4Z i MI .'A,
Name/Title
15
Exhibit A—Legal Description of Tower(s)
Exhibit B—Site Plan
Exhibit C - Equipment/Antenna Facilities
16
Exhibit A - Site Leal Description
As of 09-13-16 at execution of document, only the Bristol Bay Water Tower is being used by the
tenant.
Legal Description—Section 4-37-7 Water Tower Site, City of Yorkville. Parcel 02-04-300-005
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Engineering Enterprises, Inc. WATER WORKS SYSTEM IMPROVEMENTS CONTRACT A.1 SITE PLAN A _ M
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Consulting Engineers United City of Yorkville ELEVATED WATER STORAGE TANK
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Su ar Grow,Ill.ols 60554 630/458-8350 I NO I DATE I EVISIONS 4 8
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