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Ordinance 2011-01 Ordinance No. 2011- AN ORDINANCE OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS, APPROVING A LAND LEASE AGREEMENT WITH CHICAGO SMSA LIMITED PARTNERSHIP DOING BUSINESS AS VERIZON WIRELESS (225 Wheaton Avenue, Wheaton Woods Park) I 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 is authorized pursuant to section 11 -76 -1 of the Illinois Municipal Code (65 ILCS 5/11 -76 -1) to lease real estate owned by the City when it is no longer necessary, appropriate, required for the use of, profitable to, or for the best interest of the City; and, WHEREAS, the City and Chicago SMSA Limited Partnership, doing business as Verizon Wireless, have agreed to terms of a lease of a portion of the property at 225 Wheaton Avenue in Wheaton Woods Park for a flagpole- design telecommunications antenna tower with an overall height of no greater than one hundred and one feet, equipment shelter, and fence in an area of approximately 1,050 square feet; and, WHEREAS, the Corporate Authorities of the United City of Yorkville hereby find that it is in the best interest of the City to enter into said lease. NOW, THEREFORE, BE IT ORDAINED, b the Mayor and City Council of the Y Y Y 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. I Section 2. That the land lease between the United City of Yorkville and Chicago SMSA Limited Partnership doing business as Verizon Wireless entitled, Land Lease Agreement ( " the Agreement ") a copy of which is attached hereto and incorporated herein as Exhibit A, is hereby approved. Section 3. That Valerie Burd, Mayor and Jackie Milschewski, City Clerk, are hereby authorized to execute and deliver said Agreement on behalf of the City. Section 4. 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 land lease. I 1 I I I Section S. This Ordinance shall be in full force and effect upon passage by a three fourths vote of the Corporate Authorities, approval, and publication as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day , 2011. 1 CI Y CLERK ROBYN SUTCLIFF � DIANE TEELING ARDEN JOE PLOCHER� WALLY WERDERICH GARY GOLINSKI MARTY MUNNS ROSE SPEARS GEORGE GILSON, JR. Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this a a day of M f}leC+t , A.D. 2011. MAYOR I I 2 li i.niid Lease Agreement 1.1 Landlord's Contact Person Bart Olson 800 Game Faun Rd. Yorkville. IL 60560 1.2 Landlord L9 Propert Landlord is the owner of a parcel of United City of Yorkville Land (the "Property ") located at 225 800 Game Farrar Rd Wheaton Avenue, known as Wheaton Woods Park. 'I he Property is more Yorkville, IL 60560 specifically described in Exhibit "A ", annexed hereto. 1.3 Namc and Address for Payment of Rent Bart Olson 1.10 Premises 800 Game Farm Rd Landlord hereby leases to and I enant Yorkville, IL 60560 leases from Landlord, approximately 30' x 35' of the Property and all access 1 -4 Landlord's Taxpayer ID and utility easements, if any (the N/A "Premises "), as more specifically depicted on Exhibit "B ", annexed 5 Propert Identification Numbers hereto 02 -17 -276 -007 I'll Lease This Land Lease Agreement, including 1.6 Commencement Dale Exhibits "A" & `B" The first day of the month following the f Last to occur of: (i) the execution of this 1.12 Tenant Address agreement or (ii) the Tenant's receipt Of a building perrnil but no later than Chicago SMSA Limited Partnership April I, 2011. d /b /a Verizon Wireless 180 Washington Valley Road 1.7 Term Bedminster, New Jersey 07921 Attention: Network Real Estate Five (5) years with three (3) additional Five (5) year renewal terms; subject to 1 13 Tenant's Contact Person Paragraph 3. Chicago SMSA Limited Partnership d /b /a Verizon Wireless 1.8 Rent During First Year 180 Washington Valley Road See Section 4 1 Bedminster, New Jersey 07921 Attention: Network Real Estate NOC 4800- 852 -2671 1 THIS LAND LEASE AGREEMENT (the "Lease "), made this day of 2011, between The United City of Yorkville, an Illinois municipal corporation, with an address as stated in Paragraph 1.2, (hereinafter designated "Landlord ") and Chicago SMSA Limited Partnership d /b /a Verizon Wireless, with its principal address as stated in Paragraph 1. 12, hereinafter designated "Tenant "). The Landlord and Tenant are at times collectively referred to hereinafter as the "Parties" or individually as the "Party ". 2: Premises 2.1 Premises. Landlord hereby leases to Tenant a portion of that certain parcel of property (the entirety of Landlord's property is referred to hereinafter as the "Property "), located at 225 Wheaton Ave, Yorkville, and commonly known as Wheaton Woods Park, and being described as a 30' x 35' parcel containing 1050 square feet together with the non - exclusive right for ingress and egress, seven (7) days a week twenty -four (24) hours a day, as further described in Paragraph 11, (hereinafter collectively referred to as the "Premises ") for access being substantially as described herein in Exhibit "A" attached hereto and made a part hereof. 3: Term and Options to Extend 3.1 Term. This Lease shall be effective as of the date of execution by both parties, provided, however, the initial term shall be for five (5) years and shall commence on the Commencement Date (as hereinafter defined) at which time rental payments will be due per Paragraph 4. The Commencement Date is defined as the later of the first (1st) day of the month following: (a) the date this Lease is executed by the parties or; (b) the date Tenant is granted a building permit by the governmental agency charged with issuing such permits, but no later April 1, 2011. 3.2 Option to Extend. The term of this Lease shall be automatically renewable for three (3) additional terms of five (5) years ( "Renewal Terms ") each following the original term or any renewable term at the annual rental stated below and otherwise upon the same terms and conditions stated in this Lease. If Tenant desires not to extend any subsequent term of the Lease it shall give Landlord written notice of its intention not to extend the term at least ninety (90) clays prior to the expiration of the then current term whereupon the Lease shall be deerned canceled upon the expiration of the then current term. 4: Rent 4.1 Annual Rent. The annual rent for this Lease shall be Thirty -Five Thousand and no /100 Dollars ($35,000.00) made payable on the Commencement Date as defined in Paragraph 3.1(the "Rent "). Rent shall be payable annually in advance on the annual anniversary of the Commencement Date but in no event later that the tenth (10th) day of that month for the Term year. Rent for any fractional year at the beginning or at the end of the Term or Renewal Term shall be prorated. Notwithstanding the foregoing, Tenant agrees to pay the rent for the first two lease years, which is in the amount of Seventy -One Thousand Four Hundred Dollars ($71,400.00), to Landlord ( "Initial Rent Payment ") within thirty (30) days after receipt by Tenant of a written acknowledgement confirming the Commencement Date. Upon payment of the Initial Rent Payment to Landlord, Tenant shall not be obligated to pay any rent pursuant to this Paragraph 4.1 until the second annual anniversary of the Commencement Date (for payment of annual rent for the third year of the Agreement). 4.2 Late Payments. Rent payments made after the tenth (10th) day of the month of the Term year shall be considered late (hereinafter "Late Payments "). Late Payments shall be subject to a processing fee of one and one - -half percent (1.5 %) of the rent then -due per month or any portion thereof that Rent is received late (the "Processing Fee "), such amount shall not be considered a penalty but rather an estimation of additional processing costs incurred by Landlord. Landlord shall, on or before the fifteenth (15th) or the month after a Late payment is made, provide Tenant written notice of such late Payment and the Processing Fee amount due. Tenant shall include payment for the Processing Fee on or before the fifteenth (15th) of the subsequent month following the written notice. All Rent payments submitted by Tenant shall first be applied towards the balance of any outstanding Processing Fees and then to the balance of Rent then due and payable. 2 4.3 Annual Rent Increase. The annual rent shall increase four percent (4 %) on each anniversary of the Commencement Date for the duration of the term and any renewal term. 4.4 Performance Bond. Tenant hereby guarantees that its improvements will be constructed without the attachment of any construction liens and in the event that any such lien is filed against the Premises on account of Tenant's acts or omissions, Tenant shall either promptly post a bond (in form and substance reasonably acceptable to Landlord) indemnifying and defending Landlord for such lien claim or cause such lien to be removed of record. As additional security for the faithful and prompt performance of its obligation under this Lease and in lieu of the obligation to post a security deposit, Tenant agrees to provide Landlord a performance and payment bond in the amount of Ten Thousand Dollars ($10,000.00) in a form reasonably acceptable to Landlord (the "Security Deposit "). If Tenant defaults under this Lease, and the default is not cured by Tenant as provided in j Paragraph 13, Landlord may use, apply or retain all or a part of this Security Deposit to compensate Landlord for any actual loss, damage or expense incurred or suffered by Landlord by reason of Tenant's incurred default. Prior to Landlord withdrawing the Security Deposit, it shall first give Tenant written notice of its intention to do so and with that notice shall provide to Tenant written documentation of the loss, damage or expense for which Landlord seeks compensation from the Security Deposit. Such notice and documentation shall be provided by landlord to Tenant after the date of the occurrence which gave rise to Landlord's claimed loss, damage or expense. Failure to provide such notice and documentations shall result in a waiver by Landlord of the right to withdraw from the Security Deposit. If the Security Deposit is reduced by Landlord in accordance with this Paragraph, Tenant shall restore the Security Deposit within forty -five (45) days after the notice and demand from Landlord. Landlord shall return the Security Deposit to Tenant or Tenant's assignee within one hunched twenty (120) days after the date of expiration or termination of this Lease. Nothing contained herein shall be construed to limit Landlord's damages to the amount of the security deposit. 4.5 Location for Payment. Rent shall be paid to Landlord at the Address for Payment of Rent in Paragraph 1.3 or to another person, firm or place which the Landlord may from time to time designate in writing at least forty -five (45) clays in advance of a rent payment date. 4.6 Landlord's Legal Fees. Within sixty (60) days after full execution of this Lease,. Tenant shall reimburse Landlord for Landlord's attorneys' fees associated with reviewing this form of Lease. Notwithstanding the foregoing said reimbursement shall not exceed Two Thousand and no /100 Dollars ($2,000.00) and shall be contingent on Landlord providing Tenant with a line item invoice evidencing said fees, redacted to protect any attorney - client privileged communication. 5: Use of Property 5.1 Use. Tenant may use the Property only for Tenant's lawful telecommunications antenna tower purposes as well as for related site preparation, improvements and maintenance purposes in accordance with local rules and governmental regulations, and such use shall not interfere with Landlord's use of the Property (i.e., if Tenant is making improvements to the Property, Tenant cannot place equipment or materials in such a manner as-to block Landlord's access). Tenant may not perform or permit to be performed any advertising from or on the Tenant's Facilities. 5.2 Construction A. Tenant shall constrict /install Tenant's facilities at Tenant's sole cost and expense and in accordance with the construction drawings attached as Exhibit `B" (Tenant's Facilities "). The tower in Tenant's Facilities shall consist of a flagpole- design telecommunications tower with an overall height no greater than one hundred and one feet (101'- 0 "). The Tenant's Facilities located on the ground shall also be improved with a new equipment shelter constructed with a gable roof and siding materials to reasonably match the existing City- owned shed located on the premises in a manner consistent with the attached Exhibit "B ". The parties acknowledge that in order for Tenant to install its equipment shelter the existing City -owned shed located on the premises must be removed. In consideration of Landlord performing the removing and disposing of the existing 3 shed, Tenant agrees to make a one -time payment of capital to Landlord in the amount of $7,500 within thirty (30) days following the Commencement Date. The ground equipment shall be screened using an eight foot (S'- 0") tall vinyl fence designed to match as nearly as possible the siding material of the equipment shelter to be constructed on the Property B. Tenant shall not construct /install Tenant's Facilities without receipt of a building permit issued by the Landlord. Prior to issuance of building permit, Tenant shall submit Tenant's construction and antenna drawings to Landlord to sign off and approve the construction and antenna installations. Landlord shall review such drawings within twenty -five (25) business days of receipt of plans. Within thirty (30) days from the date of completion of all construction activity (or as soon as possible thereafter weather conditions permitting), whether upon installation or later maintenance, repair and replacement, Tenant shall restore or cause to be restored to the reasonable satisfaction of Landlord, the Premises and other affected areas of the Property, including without limitation any and all landscaping, as nearly as may be, to the same condition or to a condition better than that which existed immediately prior to the commencement of such activities by Licensee. a 5.3 Collocation. Tenant does not object to and upon Landlord's request will make reasonable efforts to allow collocation of other wireless telecommunication companies on Tenant's antenna tower, provided: a) that such installation does not cause interference with Tenant's Facilities; b) that collocation patty enters into an agreement with Tenant; c) provided said collocation carrier enters into a separate ground lease agreement with Landlord; d) that the tower can structurally support the proposed collocation; e) that the aesthetics and design of the flag pole tower is not substantially altered by the collocation; and f) that Tenant has reasonable approval of the location placement of the third party telecommunication companies ground equipment installation. There will not be any collocation unless the new carrier enters into a separate ground lease agreement with the Landlord or obtains the Landlords consent. 6: Tenant's Installation { 6.1 Improvements. A. Without obtaining Landlord consent, Tenant may from time to time replace Tenant's Facilities with new or different but no additional, items with the same or different specification ( "Improvements ") so long as their installation is otherwise in compliance with this Lease, applicable laws, ordinances and Codes, Tenant's installation of Improvements shall not interfere with Landlord's use of the Property. B. As and for part of the consideration for use of the premises, Tenant shall purchase an American Flag for use on the flagpole /monopole described herein, all in conformity with the plans described in Exhibit "B ", provided that the Landlord shall be responsible for the daily operation, maintenance and repair of the flag. 6.2 Workmanlike Construction. Tenant agrees that the installation and any subsequent Improvements shall be completed in a neat workmanlike consistent with good engineering practices. All Costs of the installation, including, but not limited to, the cost of bringing electrical service to Tenant's equipment by directional boring or by open trenching in the event any unforeseen conditions are encountered during the underground boring process, will be paid by the Tenant. 6.3 Title to Various Items. Landlord shall, at all times during the Term of this Lease, be the sole and exclusive owner of the Property. The Tenant shall at all times be the sole and exclusive owner of Tenant's Facilities. All of Tenant's Facilities shall remain Tenant's personal property and are not fixtures. 6.4 Utilities. Tenant shall pay for the electricity it consumes in its operations at a rate charged by the servicing utility company. Tenant shall have the right to draw electricity, by separate meter or by sub meter, and other utilities from the existing utilities on the Property or obtain separate utility service from any utility company that will provide service to the Property (including a standby power generator for Tenant's exclusive use).. Landlord agrees to sign such documents or easements as may be reasonably required by said utility company to provide such service to the Premises, including the grant to Tenant or to the servicing utility company at no cost to the Tenant, of an easement in, over across or through the Land as required by such servicing utility company to provide utility services as provided herein. 4 6.5 Approvals. Tenant's work shall be completed in accordance with all applicable building codes and will conform to all applicable governing codes and ordinances. Tenant undertakes full and complete responsibility at all times hereafter for the expenses of, and quality of, construction and compliance with all code requirements and regulations of governmental authorities having jurisdiction over the construction, including but not limited to compliance with acts effecting construction of public buildings and service areas used by public employees, and Tenant agrees to remedy or correct any deficiencies with such compliance. The constructions 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 constriction activities upon public property. The construction work shall proceed without interference or disruption, or minimalization of same, to the current operations of the Landlord. ' 6.6 Liens. Tenant shall: (A) pay before delinquency all costs and expenses of work done or caused to be done by Tenant in the Premises; (B) keep the title to the Tenant's Facilities and every part thereof tree and clear of any lien or encumbrance in respect of such work; and (C) indemnify and hold harmless Landlord against any claim, loss, cost, demand (including reasonable legal fees), whether in respect of liens or otherwise, arising out of the supply of material, services, or labor for such work. Tenant shall notify Landlord of any lien, claim of lien, or other action of which Tenant has or reasonably should have knowledge and which affects the title to the Tenant's Facilities or any part thereof, and shall cause the same to be removed within thirty (30) days (or such additional time as Landlord may consent to in writing), either by paying and discharging such lien or by posting a bond or such other' security as may be reasonably satisfactory to the Landlord. If Tenant shall fail to remove same within with said time period; Landlord may take such action as Landlord deems necessary to remove the same and the entire cost thereof shall be immediately dire and payable by Tenant to Landlord.. 7: Taxes Tenant shall be solely responsible for and shall timely pay all taxes levied and assessed against its use of the premises including real estate taxes levied and assessed against its leasehold estate. Tenant shall not be responsible for any real estate, special assessments or similar taxes relating to the Property except to the extent permitted by statute. Tenant shall have the right, at its sole option and at its sole cost and expense, to appeal, challenge or seek modification of any tax assessment or billing for which is wholly or partly responsible for payment.. Landlord shall reasonably cooperate with Tenant at Tenant's expense in filing, prosecuting and perfecting any appeal or challenge to taxes as set forth in the preceding sentence, including but not limited to, executing any consent, appeal or other similar document. If Landlord receives notice of any personal property or real property tax assessment or bill against Landlord, which may affect Tenant and is directly attributable to Tenant's installation, Landlord shall provide timely notice of the assessment to Tenant sufficient time to pay said tax assessment or to allow Tenant to consent to or challenge such assessment, whether in a court, administrative proceeding, or other venue on behalf of Landlord and /or Tenant. 8: Mutual Indemnification Landlord and Tenant hereby agree to indemnify, defend and hold each other harmless from and against any claim of liability or loss from personal injury or property damage in connection with the Property or resulting from or arising out of the use and occupancy of the Property by the indemnifying party or its agents, excepting, however, such claims or damages as may be due to or caused by the negligent acts or omissions of the indemnified party or its agents. Neither party shall have any obligation under this Paragraph 8 unless notified in writing of any such claim or loss within sixty (60) business days of receipt by the other party of notice of such claim or loss. 9: Insurance 9.1 Requirements. During the Term and Renewal Term of this Lease, Tenant shall carry and maintain commercial general liability insurance, naming the Landlord, its officers, agents, employees and volunteers as additional insured, insuring against liability for injury to persons or property occurring in or about 5 the Property and Premises or arising out of the ownership, maintenance, use or occupancy thereof. Coverage under such policy shall be no less than $2,000.000.00 per occurrence for personal injuries and no less than $500,000.00 per occurrence for property damage or $3,000,000.00 combined single limit coverage for bodily injury and property damage. In addition, Tenant shall carry and maintain workers' compensation insurance in the statutory amount throughout the term of this Lease. Tenant shall provide Landlord with a certificate of insurance evidencing such coverage required by this Paragraph 9.1 within fifteen (15) days of the Commencement Date. Further, each certificate of insurance shall require no less than thirty (30) days written notice to each additional insured prior to cancellation (10 days notice shall apply to non- payment). 9.2 Non - Waiver. Under no circumstances shall the Landlord be deemed to have waived any of the insurance requirements of this Agreement by: (A) allowing any work to commence before receipt of certificates of insurance or additional insured endorsements; (B) by failing to review any certificates or documents received; or (C) by failing to advise the Tenant that any certificate of insurance fails to contain all of the required insurance provisions or is otherwise deficient in any manner. The Tenant agrees that the obligation to provide the insurance required by these documents is solely Tenant's responsibility and that Tenant's obligations cannot be waived by any act or omission of the Landlord. 10. Landlord's Representations In order to induce Tenant to enter into this Lease, Landlord covenants, represents and warrants, as of the date of this Lease and throughout its Term, as follows: 10.1 Authority. Landlord is the owner of Property in fee simple. Landlord has full authority to execute, deliver and perform this Lease and there is no mortgage affecting this Property. 10.2 No Condemnation. Landlord has received no actual or constructive notice of any condemnation or eminent domain proceedings or negotiations for the purchase of the Property, or any part instead of condemnation. 10.3 No Unrecorded Liens. Landlord has not perforrned and has not caused to be performed any work on the Property during the six (6) months preceding the date of this Lease which could give rise to any mechanic's or material men's liens. 10.4 Rights Upon Sale: Should the Landlord, at any time during the term or any extension term of this Lease, decide to sell that portion of the Property containing the Premises to a purchaser other than Tenant, condemnation as stated in Paragraph 14 excluded, such sale shall be under and subject to this Lease and Tenant's rights hereunder, and any sale by the Landlord of the portion of the Property underlying the easement granted herein shall be under and subject to the right of the Tenant in and to such easement. 11: Easements 11.1 Access. For the Term and Renewal Terms of this Lease, Landlord grants to Tenant, and its agents, employees, contractors, guests and invitees, a non- exclusive right and easement for pedestrian and vehicular ingress and egress across that portion of the Property described in Exhibit "B ". Tenant and its authorized representatives shall have the right of ingress and egress to and from the Property and Premises twenty -four (24) hours a day, seven (7) days a week at no charge on foot or motor vehicle, including trucks and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes under or along a fifteen (15') foot wide non - exclusive easement extending from the nearest public right -of -way, to the demised Premises as shown on Exhibit B, subject to the Landlord's right to relocate said access at its cost. All utilities for Tenant's Facilities will be constructed or installed so as to be underground. 11.2 Modifications. If subsequent to the date of this Lease it is reasonably determined by Tenant that any access or utility easement obtained does not or no longer adequately serves the Premises and Tenant's use thereof, Landlord agrees to cooperate with Tenant to relocate such Easements where practical at Tenant's sole cost and expense. In the event the Landlord is unable to relocate any of the necessary Easements, then at Tenant's option this Lease may be terminated upon thirty (30) days' prior written notice to Landlord. 6 Notwithstanding anything to the contrary contained herein, Tenant shall be required to restore the Location of the prior casement to its original condition, reasonable wear and tear excepted within 30 days. 12: Assignment 12.1 By Tenant. This Lease may be sold, assigned, subleased or transferred by the Tenant without any approval or consent of the Landlord to the Tenant's principal, affiliates, subsidiaries of its principal; to any entity which acquires all or substantially all of Tenant's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition or other business reorganization; or to any entity which acquires or receives an interest in the majority of communication Lowers of the Tenant in the market defined by the Federal Communications Commission in which the Property is located. As to other parties, this Lease may not be sold, assigned, subleased or transferred without the written consent of the Landlord, which such consent shall not be unreasonably withheld or delayed. 12.2 By Landlord. Landlord may assign this Lease upon written notice to Tenant, subject to the assignee assuming all of Landlord's obligations herein. 13: Defaults 13.1 By Tenant. In the event of default under this Lease by Tenant, Landlord shall be entitled to remedies as shall then be provided by law except that Landlord shall not be entitled to remove any personal property (including fixtures) on the Property; and provided that prior to, and as a condition precedent to, the exercise of an) remedy, Landlord shall give to Tenant written notice of default•to Tenant and the nature of the default and Tenant shall have thirty (30) days (or, if the default cannot be cured within thirty (30) days, a longer period as shall be necessary to cure the default, acting with due diligence), after receipt of the notice within which to cure the default, during which period no remedy shall be pursued. If Tenant fails to cure a default within the period stated above, in addition to any other remedies available to Landlord, the Landlord may then, but not before, elect to commence eviction proceedings provided, however, Tenant shall be permitted a six (6) month stay from receipt of a notice of eviction at one hundred ten percent (110 %) of the then current monthly rent to find an alternative site. 13.2 By Landlord. If Landlord defaults in any of its obligation under this Lease, in addition to any remedies available at law or equity, Tenant may perform Landlord's obligation and may offset from the rent or any other amounts next payable Tenant's costs and expenses of doing so. Notwithstanding anything else in this Lease, Tenant may defer payment of rent including the first rent payment, during any period in which Landlord is in default in any of its obligations under this Lease; has failed to provide or execute or cause to be provided or executed (A) any document reasonably necessary for Tenant's rise of the Property in the manner contemplated excluding a building permit when Tenant is not in compliance with the regulations for that permit, (B) any license, or (C) any document reasonably necessary to obtain any title insurance or there necessary or desirable insurance or consent. Notwithstanding the foregoing, in the event of a default under this Lease, Tenant shall give to Landlord written notice of the default specifying the nature of the default and Landlord shall have thirty (30) clays (or, if the default cannot be cured within thirty (30) days, a longer period as shall be necessary to cure the default, acting with due diligence), after (lie receipt of the notice within which to cure the default. If Landlord fails to cure a default, in addition to any other remedies available to Tenant, the Tenant may elect to terminate this lease. 14: Condemnation In the event of any condemnation of the Property, Tenant may terninate this Lease upon fifteen (15) days written notice to Landlord if such condemnation may reasonably be expected to disrupt Tenant's operations at the Premises for more than forty -five (45) clays. Tenant may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the antennas, equipment, its relocation costs and its damages and losses (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Lease to expire with the same force and effect as though the date set forth in such notice were 7 the date originally set as the expiration date of this Lease and the parties shall make an appropriate adjustment as Of such termination date with respect to payments due to the other under this lease. 15: Casualty hi the event the Property is or Tenant's Facilities are destroyed or damaged in whole or in part by casualty during the Term or Renewal Terms of this Lease then, at Tenant's option (exercised by notice to Landlord), this Lease may be terminated as of the date of the event or at any time within ninety (90) days thereafter and no further rent shall be due under the termination section or any other section of this Lease. For the purposes of this section, casualty shall be defined as such damage as may reasonably be expected to disrupt LESSEE's operations at the Premises for more than ninety (90) days. 16: Quiet Enjoyment Landlord covenants and agrees that upon payment by the Tenant of the rent under this Lease and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the property, the right, and privileges granted for the term demised without hindrance or interference by Landlord or any other person and Landlord shall perform all of its obligations under this Lease. 17: Termination I I IT 1 By Tenant. In addition to termination as a result of action or inaction pursuant to other parts of � this Lease, Tenant may terminate this Lease: (A) at any time for any reason upon sixty (60) clays written notice to Landlord and payment of six (6) month's rent, or (B) immediately, without payment of any rent not yet due following written notice to Landlord of either (i) Tenant's inability to secure necessary governmental approvals and /or Tenant has lost, been denied, or has had cancelled, withdrawn or terminated said approvals, or if Tenant fails to satisfy any necessary governmental authorization or radio engineering criteria to use the Property as contemplated in this Lease; or (ii) Tenant's having obtained a soil test which shows contamination to building conditions which in Tenant's judgment are unsuitable for Tenant's purposes; or (iii) Tenant is unable to occupy and utilize the Premises for the use stated in Paragraph 5.1 above due to an action of the FCC, including without limitation, a take -back of channels or change in frequencies; or (iv) Tenant determines that the Premises are not appropriate for its operations for technological reasons, including without limitation, signal interference. 17.2 By Landlord. Landlord may terminate this Lease following a determination by an applicable federal governing body (which collects data using appropriate instruments which are properly calibrated) that the power density levels emitted from "Tenant's equipment located on the Property exceed guidelines established by the Federal Communications Commission ( "FCC "), at points accessible to and intended for the general public and the inability of "Tenant to bring its equipment into compliance with such standard within sixty (60) days after receipt of a written copy of Landlord's engineering findings; or, if Tenant abandons the leased Premises for a period of twelve (12) consecutive months. 173 Removal of Equipment. Upon the expiration of this Lease, or its earlier termination or cancellation for any reason, Landlord may request Tenant, at its sole expense, to remove the Property all or any part of its antennae, antenna structures, transmitting and receiving equipment, transmitting lines, shelter, sidewalks and foundations below gracle level, other personal property, fixtures and other improvements. Tenant shall be required to remove its access road unless Landlord then desires that it will remain, in which case Tenant shall not be required to remove any portion of the access road. Tenant shall have up to ninety (90) days after the effective date of the expiration, termination, cancellation to complete removal of all items. If Tenant requires any additional time after the ninety (90) day period, Tenant shall pay Landlord the then current monthly rent (or in the case of annual rent one - twelfth of the annual rental) in advance for each thirty (30) day period or portion thereof Tenant requires to complete the removal. All of Tenant's Facilities for which Landlord does not request 8 I I, removal shall become the personal property of the Landlord and shall be conveyed at the termination of the Lease by a duly- executed bill of sale. 18: Cooperation Landlord agrees to cooperate with Tenant in any efforts by Tenant to secure any governmental permits necessary to use the Property as contemplated in this Lease, and to join in any application or other document reasonably requested by Tenant within ten (10) clays of Tenant's written request. During the Term or Renewal Term of this Lease Landlord shall take no action that adversely affects the uses permitted by this Lease on the Property. At any time after the date of this Lease or the Commencement Date, either party shal I execute or cause to be executed any documents, or take or cause to be taken any actions, reasonably necessary to carry out the intent of this Lease. 19: Lease Construction This Lease shall be construed in accordance with the laws of the State of where the Property is located. fn the event that any provisions of this Lease are legally unenforceable, the other provisions shall remain in effect. 20: En tire Binding 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. Presentation of this Lease by Tenant to Landlord shall not constitute an offer unless the Lease has been signed by Tenant, and this Lease shall not be binding until executed by both Landlord and Tenant. 21: Successors; Separability Subject to the provisions regarding assignment, this Lease shall be binding upon, and inure to the benefit of, the successors -in- interest and permitted assigns or subtenant of the parties and any grantee of Landlord, 22: Notices All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): Landlord: United City of Yorkville 800 Game Farm Rd. Yorkville, IL 60560 Tenant: Chicago SMSA Limited Partnership d /b /a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. 23: Performance Time is of the essence in this lease. 24: Broadcast Interference 9 24.1 Definition. As used in this Lease "interference" with a broadcasting activity means; (A) interference within the meaning of the provisions of the recommended practices of tine Electronics Industries Association ( "ETA ") and the rules and regulations of the Federal Communications Commission ( "FCC ") then in effect, or (B) A material impairment of the quality of either sound or picture signals on a broadcasting activity as may be defined by the FCC at any hour during the period of operation of activity, as compared with that which would be obtained if no other broadcaster were broadcasting from the Property or had any equipment on the Property. 24.2 Interference. (A) Tenant shall operate Tenant Facilities in a manner that shall not cause physical, mechanical, radio frequency or signal interference to Landlord and other tenants or licensees of the Property, provided that their installation predates the execution of this Lease. All operations by Tenant shall be in compliance with all FCC requirements. (B) Subsequent to the installation of the Tenant Facilities, Landlord shall not permit itself, its tenants or licensees to install new equipment on the Property if such equipment is likely to cause physical, mechanical, radio frequency or signal interference with Tenant's operations. Such interference shall be deemed a material breach by Landlord, for which there is no adequate remedy at law, allowing Tenant the right to specifically enforce the provisions of this paragraph in a court of competent jurisdiction. In the event interference occurs, Landlord agrees to take all reasonable steps necessary to eliminate such interference in a reasonable time period. Landlord shall have the right to install equipment that is in compliance with all FCC standards and regulations, subject to the reasonable review and approval by Tenant. (C) Intentionally omitted. (D) Tenant's equipment must accept any interference caused by and may not cause any interference to the operation of any existing public safety equipment such as police, fire department and 911 dispatches. 25: Environmental Matters 25.1 Definition. For purposes of this Lease: (A) "Applicable Environmental Laws" includes the Comprehensive Environmental Response, Compensation, and Liability Act, and so called "Super -ftmd" or "Super -lien" law, or any other Federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standard of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at anytime hereafter in effect. (B) "Hazardous Material" includes any hazardous, toxic or dangerous waste, substance or material as thatternu is defined in Applicable Environmental Laws, 25.2 No Hazardous Material. Neither the Landlord nor, to the best knowledge of Landlord, any other person has ever caused or permitted any Hazardous Material to be placed, held, located or disposed of on, under or at the Property or any part thereof nor any part thereof has ever been used by the Landlord, or to the best knowledge of the Landlord, by any other person either as a permanent or temporary dump site or storage site for any Hazardous material, 25.3 Tenant's Indemnity. Tenant indemnifies the Landlord and agrees to hold the Landlord harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever paid, incurred or suffered by or asserted against Landlord, for with respect to, or as a 10 direct or indirect result of, the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, discharging or release from the Property or into or upon any land, the atmosphere, or any watercourse, body of water or wetland, of an Hazardous Material (including, without limitation, any losses, liabilities, damages , injuries, costs, expenses or claims asserted or arising under applicable Environmental Laws) caused by or in control of Tenant, Landlord will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or concerns as may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the Property, unless such conditions or concerns are caused, in whole or in part, by the specific activities of "Tenant in the Premises 25.4 Landlord's Indemnity. In all other cases, Landlord indemnifies the Tenant and agrees to hold the Tenant harmless from and against any and all losses, liabilities, damages, injuries, costs expenses and claims of any and every kind whatsoever paid, incurred or suffered by or asserted against Tenant for, with respect to, or as a direct result of, the presence on or under, or the escape seepage, leakage, spillage, discharge, emission, discharging or release from the Premises or into or upon any land, the atmosphere, or any watercourse, body of water or wetland, of any Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under Applicable Environmental Laws) caused by or in control of Landlord. 25.5 Survival. The provisions of and undertakings and indemnification set out in this Section shall survive the termination of this Lease. 26: Waiver of Landlord's Lien Landlord waives any lien rights it may have concerning the Tenant Facilities which are deemed Tenant's personal property and not fixtures, and Tenant has the right to remove the same at any time without Landlord's consent. 27: Memorandum of Agreement Landlord acknowledges that a Memorandum of Agreement will be recorded by Tenant in the official's records of the County where the Property is located. Landlord agrees to execute said Memorandum of Agreement upon request by Tenant - 28: Consent In any case where approval or consent of one party hereto is required, requested or otherwise to be given under this Lease, such party shall not unreasonably delay or withhold its approval or consent. (Signatures on next page) 11 IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective signatures the day and year first written above: LANDLORD TENANT United City of Yorkville, an Illinois municipal Chicago SMSA Limited Partnership d /b /a Corporation Verizon Wireless By By: Cc] l o PXr jp, its Ge eral P tner ' Name: c� 1�,►- i Title: OAg0l15 By: Date: 3 T Beth Ann D oh n Area Vice •e work Date: i I 12 Exhibit A Description of Property LEGAL DESCRIPTION LOT 16 IN YORKVILLE BUSINESS CENTER UNIT 2 A SUBDIVISION OF PART OF THE WEST '/2 OF SECTION 16 AND PART OF THE EAST `/2 OF SECTION 17 ALL IN TOWNSHIP 37 NORTH RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN KENDALL COUNTY, ILLINOIS 13 Exhibit B Depiction of Premises (see attached) i I I 14 / EXISTHG PROPERTY LITL= E � i Y..I5TINGWPU- LIDUTI_ITI 2. EXISTING In'OODS� E I � �DRAP;nGC- E GFInI FAiFtlEIITU IPERPLA� I E %I9TII 4n9<Fa2C I \ I � I , m LOC. 1193380 I 'ROP E010. v .. -' t -- NOR H =l /fFCI E.^,SE PUBLIC UTILITY L M11t. /:GE EASEVELT(PER PL/.TI YORKVILLE L - R ELECTPIC TRAHSF0RI ER E'•ISTIF:G BUILDILIG ' F .,TIiIGTcLDOPED- STAL -- _ i - : �` %ISiI`.G 2��ETPACK Y- 225 /J.V:. ',10 DDIAFLES I -� to � \\ VOkI< LGO`VJ 'ET, C ALMAW HJLE. D} nT I t �T T /.T'T TO PROV DE I IF A r.PIJ VIGT L ROLI %!,EATON AVE, TO PRO POSED_ -- ---- CHAr.LFS PEDEST LL12- 1 u A\%NUt r /HEiATON \ —i t ESISi L.G ,11Y. 9JR LI�I�l I D 11 � , ( \)�71I $ I- T- • Y. j 1 I - LCC /1TI011 PIAM �r�r.P. ;LD ncr,Eer -nm nkenl \_ ROFO„EDIS'V,1DE .__ — _ xmr nra mrc I .,1I;DISrnrcEro ' f `ARr ^T R[31DeSCE E III E %GESG or 5W __EXISTING THE -UNE IN `? -V/ ICI '+G -- \ •� �EXISTIr1G PRO ?ERTV LO _ 1 � IJ EXISTING FL( " Q .E \ I f I I E %I STIY.i2 PVDLIC - -mi I / b �` UTILITY&DRAN.1GE �� 1 , hl l I 4 EASCrCi : ,T CR I +LS I A L L `� U PR x{02 1 i .2 iE 007 P La UNITEL) C11Y 0i H \\ - F.D'A'A\E GUILE L ICS AI I '.•/y' VF OF ORK Ii..I 1 - d RICGC PROPOS FROM F1 �CLO5URE TC A. TENN\TO'AER i J 100 HIl PROP FIhC -aD�h Vl LESSEE ANTErIJS q 2T& 11AG.L. I 1 \ i PRO' +OSED L10 VLA A. V.'1H Y iII I PA —CLIC REFL iOP IIJSTr1LED i� �� vFl_ ll \ f I �' 1 OYo TALL STEEL POST. TYP CF — 14 i 1U yr i ' \ - -- / T - I A \ G.C- TO FOC U S L"A_RS GU FLn #11 \IU/ II.I I I/_ II I JJI / /J \ F:(IFTING F_FCTPIC l_ I \ D I I_ l I ICIC I \\ - I YIiM15FORU,ER I \ I 11 'l� /' Pry0PO5E0 LESSCC �QUI'1,1I nlT� `�' =ET�"17FT ROOFn:l01N 5 PAGEfl3. EXIST JG TELCO PELK ' M — PR(7POSFO7 LEASE 'PEA 'I G/'. TOACO 4 PHOTOCELL TIVEPlSN CHI f / j I _ J A FRAME TO CO'JTROL FLA^ FOL_ 1 \ r (ON FT DU.I( OFF AT OAV,IJI \ - ICONTIiAGTOR TO REMOVE I. - Y _ IE(I If•( PL41JTIfIGS tVTHItI FE1:CE L—• ° i '� �� Ir i� LDSUZE:rAS =_•Ir,uiea RCP`1 EDGhIAA1FS� f L PC P STALlH4FI HO BY +.T.°.T (Ell �B / rC I^ .. %r. _ - . I - ---- 1 � 'cordrn ACTOR TO REV �, - - -- - - - - -" I PR PJSFD IT \loF _ / 'GJ TI'IG 1Ir I� DCLELE -DINING GATE E u / ,( aTnFG CO` CREtE DR VE T`J SFCCRI LATCH I III `! - \ i._'RoP 'p, � .SSEF - PR CPOSCO AGGREGATE EXISTING i liC V51J EXISTING F.TBACY. r -� +'. i /I \ _!\ CRA tIA C [l'EfT fFE7' ATI . - -- I I } I �_ 1 I I � I � . � � -� < , I� I PROPOSED Ti HIGH I I C t(v FURI.I^ UTILNY3.- - - - - -- - - `J O O \y ��� ARBORVITAE,TIP. CPS SITE DIMENSION PLAN I I I I 2� - -- I IPER PLAT) FLA c \ ` -` E O II I I O ^ I r'I. - _..-- _. - - -.J _ -. - - -_ DRAINAGE EASEMENT � - - ,� Pa POtienfsLlx LOC. Y193389 G"DLE LIGHiIrlC NOTE . _ TFOS TOP.CR R OU L (�) I OCO WAT LAI.IPS Al TFI ACCESS F EA E NT - — - - - I I I� -, - I - 1 \ - - .iW Ii- ECTORS INCLUOIYGA PHOTOCELL EXISTI`1G RO`N T11 , lI �_� - � . _ . RA8CLI'_ R 0 L NORTH I 9F GfQP. 1 1 _ -. I Lr_ I. _ _ __ _ — _ _ _ _ r I YORKVILLE ` AND OESII+NER PRIOR E I O II.IGTALI R LE lhilO 1" SSE L_ - \ \ I - - — - C _ / - ��. - - - -- `� AF ?RC;(It!Al'ELOCATICr!S OF Ui'JERGROUND UI ILI'S113 PER ( 22..5 f/ Ii + I IIEATCHAVr VOHn 1%27ItG S,1R VFY OF UTILITY LITY `A4RKIVGS. ACCESS ROAD 0117CHED) /IL E L C'I:I] E II P v •"`, LJ MICA!: 503A AG SUBuRAOE GREG TILEFA FABRIC OP. I1IRAFI 000X 5(I GEOTEY.TILE FABnI OP. APPROVED EQUAL SIOE - r COfITPACTOR oHAI:D DIG AI.D F_%ISTING V+ALi( LOCATE lLLL L\'DERCROU':p W I UTILITIES PRIOR 7O SETTII•:G FC`IGC �+� LEA RE - EXIS71Yv PItNHOLE J ?S!DEFrROUN TIL I`C aOp¢ AVOID II E / i ALL UT UEROROUC L v o l TIES /.' 9 l CRUSHED uaACTED AG ^FEGATE 845E GOUR SE, V.I H W EXIST YG UPI ITI BOX -... CO _. -_ - -- JI ACGFEGATL'17FILE SOR n ` -- AP aDV COU�L 111R• FI 500 ?' UO SGRA D - SURVI'P D DED 0Y GEOTEXTIL- FASFUC OP. APPROVED EQUAL EXISTING CATCH BAS::`! �l / `[° p � �/ �`(IIl'11115 7 � `1�S - J {! V H PTO' AVENUE IGIN[CI'W G cN.._._ THE r• •OVTRAC -, ORSNLLINCLJ_CAS?AaTCF - n IEDID. EXISTNG.115HT POLE -- SITE PUJ TH _COST OF RFI.1OVAL OF ANY SUR'h.CE VEGETATIO'! _ ANN ORGANI(:1.711S OR OTFIFRn. LETrnlJU3 L1sTEf -:NS �W rri i AND Tlic RE'LAMGE NTV.'1TH Et,GIHIERED BA.KFI.L FOR - - -- ` THE AGO R GATC ACCESS DRIVE AUD LEASE SI III _ - - -- _ - - __- __- ._ - - - -. __ -- ACCORDANCC NR EPORT RECD 'Il.f..pICATICN$OF TIIE / "`� 1 — GEOTECHNIC.41_REPCRi. -- - -_ - -. __- -- � i� F`�m �f I J . I. �) lu y 1 - FIPIIfiE CAfifilcn �'� 1�: i nr.T¢lums i�:Ju ��u.. _ 4 LOC. It 193339 ma NORTH A Pa FO D -A—ITH YORKVILLr ;T Lc 011 0TALL STEEL d i ANTEN no. E Cl ❑E TO r nrITEH' n iC fi kr PJ, Nn LE I f 1 avG. ^'�'�� , �Oar/aLE.-ro,vn c (1 EE 3 _J i I I LTE (I 1 1 H 'I( � I l� 1 5T E 5 ILG. I rr�f 11 - enr L X1111 - I 1 -''1 -- -I -- - -- I_ ?l•__ . II _ I I s�orl 3 LEGA DESCRI -) ' KANE co-L- ­ ­1T /CVc) f uorE \ Or,TI l '(0�!<VILLc - nt r .�Ir P a cap a�rs�a�tt=s ur :r;lc a -/ - - rr 6 � I<ErlOA11 CD. ) ,!n l �j t �y um hD f ; N10. u - , ' 1 /AD G IrPW.9 `V M 1 r 1p� /em pc ev L4at pot cl Inl to N !' rl t.�•r�3 •s.LL -r rcl: au l:a vu rtl r unl,. uu> _- .,reelN Lf., e..:ll701 L.. #1 9J.i i�� }} (, /�_��� It. r.ID G . -i tit I`n IL m9pa l 1 N E t 1j4 v' Sau» 1], Tvcv'.N S! I-N C.a; ] Fit m w, 11,.J Nt�d L+Y v A..:GSt f +,1% E4w�. E \ - I ✓^` V rn m 92 Iry u c..•,-w �.,L IAV..x>:;. '• I EGAL DESCRIPT sITE= 1.� limited portnCrSi(l)7 ELEVA710N CATL�d srrew•L,:el aaµN. w,4 n +w.mmvrlsL- N-..,r m: Nr -:.sc` �� �U:: /' ILL F1E - - IA\ rd OAR'J- v. ae (W ,IWk v <r �' }) e,q v1f +�11 - >Fxy ::.20.3 that pvf of WI 10 h Yukw ^. L`,:.1tu Ccnl-v Ln't; a uLu'.:dar cl p.�! N IU t�rl _) �/ LVN? VE,Z li <t v: o u3 G0 fwt rY.va una b Ilu kR, uu W W d NYh Ova �/z Vy, la and port of uV Ec =u ,/2 0l O:aL'm lT. cf ti i�sr:4p 3T IIa IA. 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