HomeMy WebLinkAboutOrdinances - ORD-09-1461 - 04/29/2009 - AUTHORIZE MAYOR EXECUTION TOWER AND GROUND LEASE AORDINANCE NO. ORD-09-1461
AN ORDINANCE PROVIDING FOR AND AUTHORIZING THE MAYOR'S
EXECUTION OF A TOWER AND GROUND SPACE LEASE AGREEMENT BETWEEN
THE CITY OF MCHENRY AND U.S. CELLULAR FOR USE OF THE SIOUX LANE
ELEVATED STORAGE TANK AND ASSOCIATED LAND AREA LOCATED AT 4225
SIOUX LANE FOR WIRELESS TELECOMMUNICATION EQUIPMENT, IN THE CITY
OF MCHENRY, MCHENRY COUNTY, ILLINOIS
WHEREAS, a petition to lease City of McHenry property located at 4225 Sioux
Lane, for the purpose of constructing wireless telecommunication equipment on the
City's Elevated Storage Tank, and associated land for the construction of pertinent
structures, situated on the premises has been filed with the City by US Cellular; and
WHEREAS, a copy of the Tower and Ground Space Lease Agreement
("Agreement"), attached hereto as Exhibit A, and made a part hereof, has been
reviewed by City Staff and has been found to comply with all recommendations of Staff
and City of McHenry Attorney; and
WHEREAS, the City Council has considered the recommendation of Staff and
believes the approval of said Agreement is consistent with the objectives of the City of
McHenry to protect the public health, safety, morals and general welfare of its residents.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF MCHENRY, MCHENRY COUNTY, ILLINOIS, AS FOLLOWS:
SECTION 1: That the attached Tower and Ground Space Lease Agreement
between U.S. Cellular and the City of McHenry for the lease of the City's Sioux Lane
Elevated Storage Tank for wireless telecommunication equipment, and associated land
for the construction of pertinent structures, is hereby, approved as presented, and the
Mayor is hereby authorized to execute said Agreement on the City's behalf.
SECTION 2: All Ordinances or parts thereof in conflict with the terms and
provisions hereof are hereby repealed to the extent of such conflict.
SECTION 3: This Ordinance shall be published in pamphlet form by and under
the authority of the corporate authorities of the City of McHenry, McHenry County,
Illinois.
SECTION 4: This Ordinance shall be in full force and effect from and after its
passage, approval, and publication in pamphlet form as provided by law.
PASSED AND APPROVED THIS 20TH DAY OF APRIL
AYES: SANTI, GLAB, SCHAEFER, MURGATR.OYD, WIMMER, CONDON
NAYS: NONE
ABSTAINED: NONE
ABSENT: PETERSON
NOT VOTING: NONE
MAYOR
ATTEST:
c,
CITY CL K
Met
Site Name: McHenry DT Site Number: 8831427
TOWER AND GROUND
SPACE LEASE
This Option Tower and Ground Space Lease (the "Lease") is made by and between City
of McHenry, an Illinois municipal corporation, whose address is 333 S. Green Street, McHenry,
Illinois 60050, hereinafter referred to as "Landlord", and United States Cellular Operating
Company of Chicago, LLC, a Delaware limited liability company, Attn.: Real Estate, 8410 West
Bryn Mawr Avenue, Suite 700, Chicago, Illinois 60631, hereinafter referred to as "Tenant".
WHEREAS, Landlord owns a communications tower (the "Tower") located on a parcel
of land (the "Site"), at a Latitude of 42-20-16.6 and Longitude 88-16-42.3 (NAD 83), with an
address of 4225 Sioux Street in the City of McHenry, in Lake County, State of Illinois, as such
Site is legally described on Exhibit A attached hereto and made a part hereof.
WHEREAS, Tenant desires to occupy, and Landlord is willing to provide, attachment
locations upon the Tower and Ground Space (as hereinafter defined) at the Site for Tenant's
cellular common carrier mobile radio base station operations, including related
telecommunications functions.
NOW, THEREFORE, in consideration of the mutual promises., conditions, and other
good and valuable consideration of the parties hereto, it is covenanted and agreed as follows:
1. Option to Lease. (a) Landlord hereby grants to Tenant an option (the "Option") to
lease from Landlord the following described premises (the "Premises") together with
unrestricted access for Tenant's uses from the nearest public right-of-way along the Site:
(i) Attachment locations upon the Tower at a height of for the
placement and affixing of three (3) cellular antennas, at the heights and
orientations shown on Exhibit B attached hereto (the "Communications
Facility"),
(ii) A parcel of ground space adjacent to the base of the Tower, as
shown on Exhibit B attached hereto (the "Ground Space"), for the placement
of a radio station equipment shelter measuring approximately twelve (12')
feet by twelve (12') feet ("Tenant's Building") upon a poured concrete
foundation.
(b) During the Initial Option Term and any extension thereof, and during the Term
(as hereinafter defined) of this Lease, Tenant and its agents, engineers, surveyors and other
representatives will have the right to enter upon the Site to inspect, examine, conduct soil
borings, drainage testing, material sampling, and other geological or engineering tests or studies
of the Site (collectively the "Tests"), to apply for and obtain licenses., permits, approvals, or
other relief required of or deemed necessary or appropriate at Tenant's sole discretion for its use
of the Premises and include without limitation applications for zoning variances, zoning
ordinances, amendments, special use permits, and construction permits (collectively referred to
as "Governmental Approvals"), and otherwise to do those things on or off the Site that, in the
opinion of Tenant, are necessary in Tenant's sole discretion to determine the physical condition
of the Site, the environmental history of the Site, Landlord's title to the Site, and the feasibility or
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suitability of the Site for Tenant's permitted use, all at Tenant's expense. Tenant will not be
liable to Landlord or any third party on account of any pre-existing defect or condition on or with
respect to the Site, whether or not such defect or condition is disclosed by Tenant's inspection.
(c) In consideration of Landlord granting Tenant the Option, Tenant hereby agrees to
pay Landlord the sum of Fifteen Hundred dollars ($1500 00) within seven (7) days of full
execution of this Lease by Landlord and Tenant. The Option will be for an initial term of twelve
(12) months (the "Option Term"). Landlord shall provide a complete and accurate IRS form W9
to Tenant prior to payment of the Option sum.
(d) During the Initial Option Term and any extension thereof, Tenant may exercise
the Option by notifying Landlord in writing. If Tenant exercises the Option, then Landlord
leases the Site to the Tenant subject to the terms and conditions of this Lease.
2. Easements. Landlord hereby confers upon Tenant the following described non-
exclusive easement appurtenant to the Premises, which shall be irrevocable for the duration
hereof:
(a) the right to place and affix such lines, conduits, connections, devices, and
equipment for the transmission, reception, encryption and translation of voice and data signals by
means of radio frequency energy and landline carriage, including lines for signal carriage
between the Ground Space and the Communications Facility (all such items, along with the
items attached on Exhibit B hereto, are collectively referred to herein as the "Equipment"), as
Tenant, in its sole discretion, deems necessary or desirable for the conduct of Tenant's business,
subject to Landlord's prior consent to any significant changes which Tenant may from time to
time propose to make to said Equipment, which consent shall not unreasonably be withheld or
delayed;
(b) the right to extend and connect utility lines between Tenant's Building and
suitable utility company service connection points;
(c) the right to travel between the Premises and the public road over the Site and
other routes which Landlord is entitled to use; and
(d) the right to traverse other portions of the Site: as is reasonably necessary to access,
repair and maintain the Premises or otherwise to accomplish Tenant's purposes as contemplated
herein.
3. Use of Premises. Tenant shall be entitled to use the Premises to install, operate,
and maintain thereon a cellular common carrier mobile radio base station, including system
networking, station control, back-up power devices, legally required signage and performance
monitoring functions, but for no other use or purpose. 'Tenant's use of the Premises shall at all
times comply with and conform to all laws and regulations applicable thereto.
4. Initial Term. In the event Tenant exercises the Option, the initial Lease term will
be five (5) years (the "Initial Term"), commencing upon the Commencement Date (as defined
below) and terminating at midnight on the day in which the fifth (5th) anniversary of the
Commencement Date falls.
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5. 0 Lion to Renew. The Initial Term of this Lease shall automatically extend for up
to four (4) additional terms of five (5) years each (the "Renewal Term(s)"), upon a continuation
of all the same provisions hereof, unless Tenant gives Landlord written notice of Tenant's
intention to terminate the Lease at least sixty (60) days before the expiration of the Initial or any
Renewal Term.
6. Option to Terminate. This Lease may be terminated by Tenant, upon giving
written notice to Landlord, if. (a) Tenant cannot obtain or is unable to renew any permit, license,
or other approval required for Tenant's use of the Premises, whether by cancellation, expiration
lapse, withdrawal or termination; (b) Landlord does not have a legally sufficient ownership
interest in the Premises, or authority to enter into this Lease; (c) Tenant determines that the
Landlord's Property contains hazardous substances.. The Indemnification obligations of each
party contained in Section 18 and Tenant's requirement to remove improvements as provided in
Section 30 shall survive termination of the Lease.
7. Base Rent. Commencing on the date that Tenant commences construction (the
"Commencement Date"), Tenant shall pay Base Rent to Landlord in the amount of Two
Thousand dollars ($2,000.00) per month, the first payment of which shall be due within thirty
(30) days of the Commencement Date, and installments thereafter on the first day of each
calendar month, provided that Landlord shall submit to Tenant a complete and accurate IRS form
W9 prior to Tenant's first payment of rent. Landlord shall specify the name, address, and
taxpayer identification number of a sole payee (or maximum two joint payees) who shall receive
Base Rent on behalf of the Landlord Base Rent will be prorated for any partial month. Any
change to the payee must be requested in accordance with the Notice provision herein, and a new
IRS form W9 must be supplied prior to payment by Tenant to the new payee.
8. Adjusted Base Rent. On each anniversary of the Commencement Date
throughout the duration of the Lease as renewed and extended, the Base Rent shall be increased
by three (3%) percent over the previous year's Rent.
9. Tenant's Personal Property. Landlord acknowledges and agrees that all of
Tenant's Equipment and other personal property of Tenant kept or stored on the Premises by
Tenant constitute personal property, not real property, and shall continue to be the personal and
exclusive property of Tenant, and neither Landlord nor any person claiming by, through or under
Landlord shall have any right, title or interest (including without limitation, a security interest) in
Tenant's Equipment. Tenant, and Tenant's successors in interest, shall have the right to remove
Tenant's Equipment at any time during the Term of this Lease or its earlier termination. With
respect to the holler of any mortgage, deed of trust or other lien affecting Landlord's interest in
the Premises, whether existing as of the date hereof or arising hereafter, Landlord and Tenant
hereby agree, acknowledge and declare that Tenant's Equipment is now and shall at all times
hereafter remain the personal and exclusive property of Tenant. The parties further acknowledge
and agree that Landlord shall have no right or authority to grant a lien upon or security interest in
any of Tenant's Equipment.
10. Premises Maintenance. Within a reasonable time and after completion of the
installation of the Communications Facility and/or Tenant's Building, or any part thereof, upon
the Premises, Landlord shall perform an inspection of the Premises and notify Tenant in writing
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of any alleged damage resulting from such installation. In such event, Tenant agrees to meet
with Landlord within ten (10) business days of the submission of said written notice to evaluate
such claim and repair such damage at Tenant's cost using a contractor designated or approved by
the Landlord.
Tenant will keep and maintain the Premises in good condition, reasonable wear and tear
and damage from the elements excepted. Landlord will maintain and repair the Tower and Site,
and access thereto, in good repair and tenantable condition., subject to reasonable wear and tear
and damage from the elements.
Upon request of Landlord, Tenant agrees to relocate its equipment on a temporary basis
to another location on the Premises for the purpose of the Landlord performing maintenance,
repair or similar work at the Property at the Tenant's expense. Unless deemed an emergency,
maintenance shall be performed by the Landlord no more than every 5 years. Landlord shall
make best efforts to provide Tenant with sixty (60) days notification of the intended work and to
temporarily relocate and continue to operate its antennas, or otherwise to secure the antennas or
the Communication Facility generally, to protect them from damage. Tenant will be permitted to
install a temporary facility, with consent of Landlord, necessary to keep its Communication
Facility operational. Upon said notification, Tenant shall remove all of its antennas and
associated coaxial cables attached to the water tower, no less than forty-eight (48) hours before
maintenance is to begin, at Tenant's sole cost and expense. Upon completion of maintenance to
the tower by the Landlord, Tenant shall reinstall all of its antennas and associated coaxial cables,
at its sole cost and expense. Further, any maintenance will be conducted by Landlord as
diligently and expeditiously as possible. Tenant shall have the obligation to paint its equipment,
including antennas and associated coaxial cables, when first installed, the same color and quality
of paint, as the water tower. Also, the parties understand that from time to time Landlord will
paint the water tower on which Tenant's facilities are installed. When Landlord paints the water
tower, upon sixty (60) days prior written notice to Tenant, it may paint Tenant's equipment at the
same time, excluding its antennas and coaxial cables, to insure a uniform appearance of the water
tower. Tenant agrees to reimburse Landlord for Landlord's reasonable costs for such painting
directly related to the presence of Tenant's facility on the tower.
11. Tower Maintenance. Landlord represents that it has the right and responsibility to
repair and maintain the Tower. If the Tower is damaged for any reason, other than by reason of
the gross negligence or willful acts of Tenant or its agents, so as to render it substantially
unusable for Tenant's intended use, Base Rent shall abate until Landlord, at Landlord's expense,
restores the Tower to its condition prior to such damage; provided, however, in the event
Landlord fails to repair the Tower within ten (10) days following the date of such damage,
Tenant shall have the right to terminate this Lease by giving Landlord written notice thereof, as
long as Tenant has not resumed operations upon the Premises.
12. Aviation Hazard Markin. Landlord agrees to be solely responsible for full
compliance, at all times, with the Tower marking, lighting, maintenance, inspection, recording,
registration, and notification requirements of the Federal Communications Commission ("FCC")
and the Federal Aviation Administration ("FAA").
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13. FCC and FAA Tower Registration. Landlord warrants to Tenant that the Tower
has been registered by the tower owner with the FCC and/or the FAA, if required by the FCC
and/or the FAA. Additionally, Landlord warrants to Tenant that in the event the FCC or the
FAA requires the Tower to be registered during the Term of this Lease or any extensions thereof,
Landlord shall ensure that the tower owner shall take all necessary actions to register the Tower.
Landlord shall provide Tenant with a copy of the FCC and FAA tower registration.
14. Utilities. Tenant shall be responsible f'or the separate metering, billing, and
payment of the utility services consumed by its operations. Landlord will fully cooperate with
any utility company requesting an easement over, under and across the Site in order for the
utility company to provide service to the Tenant. Landlord will not be responsible for
interference with, interruption of or failure, beyond the reasonable control of Landlord, of such
services to be furnished or supplied by Landlord.
15. Taxes. Tenant shall pay prior to delinquency any personal property taxes levied
against Tenant's Building and Tenant's Equipment. Landlord shall pay prior to delinquency any
real estate taxes and assessments attributable to the land underlying the Site, and any personal
property taxes levied against the Tower, and any other of Landlord's equipment or property.
16. Access. Tenant shall have unrestricted access to the Premises at all hours of the
day and night, subject to such reasonable rules and regulations as Landlord may impose.
17. Compliance with Laws. , Tenant shall maintain the Premises and all structural
elements on the Premises in compliance with all applicable laws, rules, regulations, ordinances,
directives, covenants, easements, zoning and land use regulations, and restrictions of record,
permits, building codes, and the requirements of any applicable fire insurance underwriter or
rating bureau, now in effect or which may hereafter come into effect (including, without
limitation, the Americans with Disabilities Act and laws regulating hazardous substances)
(collectively "Laws"). Tenant shall, in respect to the condition of the Premises and at Tenant's
sole cost and expense, comply with (a) all Laws relating solely to Tenant's specific and unique
nature of use of the Premises (other than general office use); and (b) all building codes requiring
modifications to the Premises due to the improvements being made by Tenants on the Premises.
18. Tenant shall, at Tenant's cost and expense, comply with all federal, state, county
or local laws, rules, regulations and ordinances now or hereafter enacted by any governmental
authority or administrative agency having jurisdiction over the Premises and Tenant's operations
thereupon.
19. Mutual Indemnification.
(a) To the extent permitted by law, Tenant agrees to defend, indemnify and
save harmless Landlord from and against all claims, losses, costs, expenses, or damages from a
third party, arising; from (i) the negligence, willful misconduct or strict liability of Tenant, or its
agents, employees, or contractors; or (ii) any material breach by Tenant of any provision of this
Lease. This indemnity and hold harmless agreement will include indemnity against all
reasonable costs, expenses, and liabilities incurred in or in connection with any such claim, and
the defense thereof Notwithstanding the foregoing, Tenant will have no liability to Landlord to
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the proportional extent any claims, losses, costs, expenses, or damages arise out of or result from
any act, omission, or negligence of Landlord, or of Landlord's agents, employees or contractors.
(b) To the extent permitted by law, Landlord agrees to defend, indemnify and
save harmless Tenant from and against all claims, losses, costs, expenses, or damages from a
third party, arising from (i) the negligence, willful misconduct or strict liability of Landlord or its
agents, employees, or contractors, or (ii) any material breach by Landlord of any provision of
this Lease. This indemnity and hold harmless agreement will include indemnity against all
reasonable costs, expenses, and liabilities incurred in or in connection with any such claim, and
the defense thereof. Notwithstanding the foregoing, Landlord will have no liability to Tenant to
the proportional extent any claims, losses, costs, expenses, or damages arise out of or result from
any act, omission., or negligence of Tenant, or of Tenant's, agents, employees or contractors.
This indemnity provision is not intended to circumvent or in any way diminish the immunities
provided by the Illinois Governmental and Governmental Employee Tort Immunity Act.
20. Insurance.
(a) Tenant shall maintain commercial general liability insurance insuring against
liability for bodily injury, death or damage to personal property with combined single limits of
Five Million and No/100 Dollars ($5,000,000). In addition, Tenant shall maintain worker's
compensation in statutory amounts, employer's liability insurance with combined single limits of
One Million and No/100 Dollars ($1,000,000); automobile liability insurance insuring against
claims for bodily injury or property damage with combined single limits of One Million and
No/100 Dollars ($1,000,000); and all risk property insurance covering all personal property of
Tenant for full replacement value. Tenant shall provide Landlord with evidence of such
insurance in the firm of a certificate of insurance prior to obtaining occupancy of the Premises
and throughout the term of this Lease.
(b) The Landlord is to be covered as an additional insured with respect to liability
arising out of activities performed by or on behalf of Tenant. The Premises included in the
policy shall specifically include the leased and licensed areas.
(c) Tenant's insurance coverage shall be primary with respect, to Tenant's indemnity
obligations. Any insurance or self insurance maintained by the Landlord shall access of Tenant's
insurance and shall not contribute to it, consistent with Landlord's indemnity obligations.
(d) Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the Landlord.
(e) Tenant's insurance shall contain a Separation of Interest clause or language
stating Tenant's insurance shall apply separately to each insured against whom claim is made or
suit is brought, except with respect to the limits of the insured's liability.
(f) Both parties shall agree to waive all rights of'subrogation against the other party.
(g) Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after
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30 days prior written notice by certified mail, return receipt requested, has been given the
Landlord.
(h) Insurance is to be placed with insurers with a Best's rating of no less than A-, VII
and licensed to do business in the State of Illinois.
(i) Tenant shall furnish the Landlord with certificates of insurance naming the
Landlord as an additional insured, The certificates and endorsements for each insurance policy
are to be signed by a person authorized by that insurer to bind coverage on its behalf. Blanket
additional insured endorsements may be utilized if they provide a scope of coverage at least as
broad as the coverage required under this provision.
0) Landlord shall maintain general liability insurance insuring against liability for
bodily injury, death or damage to personal property with combined single; limits of One Million
and No/100 Dollars ($1,000,000). In addition, to the extent required by law, Landlord shall
maintain worker's compensation in statutory amounts and employer's liability insurance with
combined single limits of One Million and No/100 Dollars ($1,000,000). Landlord shall provide
Tenant with evidence of such insurance in the form of a certificate of insurance prior to Tenant
obtaining occupancy and throughout the term of this Lease.
21 Interference. Landlord shall not use, nor shall Landlord permit its tenants to use,
any portion of the Tower or the Site in any way which interferes with the operations of Tenant.
Such interference shall be deemed a material breach by Landlord, and Landlord shall have the
responsibility to promptly cause any such interference to be eliminated. If said interference
cannot be eliminated within twenty-four (24) hours after receipt of notice that such interference
is occurring, Landlord shall discontinue or cause to be discontinued the operation of any
equipment causing; the interference until the same can be corrected. In the event any such
interference does not cease promptly after Landlord's receipt of notice of said interference,
Tenant shall have the right, in addition to any other right that it may have at law or in equity, to
enjoin such interference or to terminate this Lease.
22. Default. Tenant shall be in default of this Lease if Tenant fails to make a payment
of rent when due ,and such failure continues for fifteen (15) days after Landlord notifies Tenant
in writing of such failure. If Landlord or Tenant fails to comply with any provision of this Lease,
the other party shall serve written notice of such failure upon the defaulting party, whereupon a
grace period of thirty (30) days shall commence to run during which the defaulting party shall
undertake and diligently pursue a cure of such failure at its sole cost and expense. Such grace
period shall automatically be extended for an additional thirty (30) days, provided the defaulting
party makes a good faith showing that efforts toward a cure are continuing. This Section shall
not apply in the case of interference, which instead shall require immediate and effective curative
action in accordance with Section 19 hereof.
23. Attorneys' Fees and Expenses. In the event of any litigation arising under this
Lease, the non -prevailing party shall, upon demand, reimburse the prevailing party for all costs
and expenses arising therefrom, including reasonable attorneys' fees.
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24. Quiet Enjoyment. Landlord covenants that Tenant shall have quiet and peaceable
possession of the Premises throughout the Initial Lease Term as the same may be extended, and
that Landlord will not intentionally disturb Tenant's enjoyment thereof as long as Tenant is not
in default under this Lease.
25 Title, Access and Authority. Landlord covenants and warrants to Tenant that
Landlord presently owns the fee simple interest in and to the Site; that the Premises are served by
legal access from a public way; that Landlord is duly authorized and empowered to enter into
this Lease; and that the person executing this Lease on behalf of the Landlord warrants himself to
be duly authorized to bind the Landlord hereto.
26. Assignment and Subleasing of Tenant's Interest. This Lease shall be freely
assignable by the Tenant to any other party without the; necessity of obtaining Landlord's
consent. Tenant's right to effect an outright transfer of the Lease, and the right of any collateral
assignee to seize the Premises as defaulted security, is subject only to the limitation that the
Premises shall be used for the purposes permitted herein. Tenant shall notify Landlord in writing
of the name and address of any assignee or collateral assignee.
27. Environmental Warranty. Landlord hereby represents and warrants to Tenant that
Landlord has never generated, stored, handled, or disposed of any hazardous waste or hazardous
substances upon the Site, and that Landlord has no knowledge of such uses historically having
been made of the Site or such substances historically having been introduced thereupon.
28. Compliance with FCC Radio Frequency Emissions Requirements.
(a) It shall be the responsibility of Tenant to ensure that Tenant's use, installation, or
modification of Equipment at the Site does not cause radio frequency exposure levels of all the
existing equipment located at the Site and in the surrounding vicinity (including the
communications equipment, Landlord's equipment, and all other transmitting equipment in the
vicinity) to exceed those levels permitted by the FCC. ]Landlord shall require other tenants
installing equipment after the installation of the communications equipment to bear the same
responsibility.
(b) Tenant agrees that in the event that there is any change to applicable rules,
regulations, and procedures governing exposure to radio frequency radiation which place the
Tower in non-compliance, Tenant will cooperate with Landlord and other users of the Tower to
bring the Tower into compliance, which cooperation shall include, but not be limited to, sharing
pro rata the costs associated with bringing the Tower into compliance.
29. Subordination. Tenant agrees to subordinate this Lease to any mortgage or trust
deed which may hereafter be placed on the Premises, provided the mortgagee or trustee
thereunder shall ensure to Tenant the right to possession of the Premises and other rights granted
to Tenant herein so long as Tenant is not in default beyond any applicable grace or cure period,
such assurance to be in writing and otherwise in form and substance reasonably satisfactory to
Tenant. Further, Landlord agrees to promptly have any mortgagee or trustee which has a
mortgage or trust deed currently placed on the Premises execute a non -disturbance agreement in
a form reasonably satisfactory to Tenant.
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30. Notices. Any notice, request or demand required or permitted to be given
pursuant to this Agreement shall be in writing and shall be deemed sufficiently given if delivered
by messenger at the address of the intended recipient, sent prepaid by Federal Express (or a
comparable guaranteed overnight deliver service), or deposited in the United States first class
mail (registered or certified, postage prepaid, with return receipt requested), addressed to the
intended recipient at the address set forth below or at such other address as the intended recipient
may have specified by written notice to the sender in accordance with the requirements of this
paragraph. Any such notice, request, or demand so given shall be deemed given on the day it is
delivered by messenger at the specified address, on the day after deposit with Federal Express (or
a comparable overnight delivery service), or on the day that is five (5) days after deposit in the
United States mail., as the case may be.
TENANT: United States Cellular Operating Company of Chicago, LLC
Attention: Real Estate Department
8410 West Bryn Mawr Avenue
Suite 700
Chicago, Illinois 60631
LANDLORD: City of McHenry
333 S. Green Street
McHenry, Illinois 60050
31. Surrender. Tenant agrees to remove its Equipment and all other personal property
in their entirety from the Premises upon the expiration or termination of this Lease. Tenant also
agrees that the Premises shall be restored, reasonable wear and tear excepted, and except for loss
by casualty or other cause beyond Tenant's control, within sixty ( 60) days of the expiration or
termination of this Lease. The parties agree that time is of the essence. The Equipment shall
remain the personal property of Tenant, and shall not be deemed to be permanently attached or
affixed to the Premises. The Equipment shall be the sole responsibility of Tenant. However,
after such 45 day interval, Landlord shall have the right without any obligation to do so to
remove such Equipment in the event Tenant fails to do so. Landlord shall not be liable for any
damage caused to the Equipment in connection with its removal or subsequent storage of same
so long as Landlord's actions are taken in good faith.
32. Surety Bond. Prior to the commencement of construction of any improvements
on the Premises, Tenant shall provide Landlord with a Fifty Thousand ($50,000.00) security
bond to secure Tenant's performance of Tenant's obligations to remove Equipment as required
in Section 31.
33. Tenant's Self -Help. If Landlord at any time fails to perform any of its obligations
under this Lease, Tenant shall have the right, but not the obligation, upon giving the Landlord at
least five (5) days' prior written notice of its election to do so (except in the event of an
emergency, when no prior notice shall be required) to perform such obligations on behalf of and
for the account of Landlord, and to take all necessary action to perform such obligations.
Tenant's costs and expenses incurred in performing such obligations of Landlord shall promptly
be reimbursed by Landlord with interest at the highest rate allowed by applicable law.
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34. Remedies. The parties shall be entitled to the application of all appropriate
remedies available to them under state and federal law in the enforcement of this Lease
35. Binding Effect. All of the covenants, conditions, and provisions of this Lease
shall inure to the benefit of and be binding upon the parties hereto and their respective successors
and assigns.
36. Execution of Other Instruments. Landlord agrees to execute, acknowledge, and
deliver to Tenant other instruments respecting the Premises, as Tenant may reasonably request
from time to time: provided that any such instruments are ;merely in furtherance of, and do not
substantially expand, Tenant's rights and privileges herein established. Landlord also agrees to
reasonably cooperate with Tenant's efforts to obtain all private and public consents related to
Tenant's use of the Premises, so long as such cooperation does not impose a material financial
burden on Landlord.
37. Invalidity of Particular Provision. If any term or provision of this Lease, or the
application of such term or provision to any person or circumstance, to any extent, is invalid or
unenforceable, the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is invalid or unenforceable, will not be
affected and each term and provision of this Lease will be valid and be enforced to the fullest
extent permitted b,y law.
38. Governing Law. This Lease will be governed by the laws of the State in which the
Premises is located.
39. Recording. Each party, on request of the other, agrees to execute a short form
lease in recordable form and complying with applicable laws and reasonably satisfactory to both
parties, which will be recorded in the appropriate public records.
40. Headings. The section headings throughout this instrument are for convenience
and reference only, and are not to be used to explain, modif, , amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
41. Entire Agreement, Waiver. This Lease constitutes the entire agreement of the
parties, and may not be modified except in writing signed by the party against whom such
modification is sought to be enforced. No waiver at any time of any of the provisions of the
Lease will be effective unless in writing. A waiver on one occasion will not be deemed to be a
waiver at any subsequent time.
42. Modifications. This Lease may not be modified, except in writing signed by both
parties.
43. Errors and Omissions. Landlord and Tenant agree as part of the basis of their
bargain for this Lease to cooperate fully in executing any and all documents (including
amendments to this Lease) necessary to correct any factual or legal errors, omissions, or
mistakes, and to take any and all additional action, that may be necessary or appropriate to give
full force and effect to the terms and intent of this Lease.
Page 10 of 15 version 1/08a
Site Name:
Site Number:
44 Non -binding until Full Execution. Both parties agree that this Lease is not
binding on both parties until both parties execute the Lease.
[END OF LEASE - SIGNATURE PAGE FOLLOWS]
Page 11 of 15 version 1/08a
Site Name: McHenry DT Site Number: 8831427
IN WITNESS WHEREOF, the parties have executed this Lease as of the date of the full
execution of this Lease.
LANDLORD: City of McHenry
By:
— ."V 2 ;c=—
Printed: 4!�;L.l S" e. W
Title: M. A\i Q Q
Phone: 815-363-2100
Date: �;> I - O 9
TENANT: United States Cellular Operating
Company of Chicago, LLC
By: v
Printed: Steven T. Campbell
Title: Vice President & Treasurer
Date:
US. Cellular.
Page 12 of 16
version 01/08a
W
Site Name: McHenry DT
Site Number: 8831427
STATE OF -ru i Nn 1 g
COUNTY OF N\IGt4ec,N
I, the undersigned, a notary public in and for the State and County aforesaid, do hereby
certify that Sees A,J F . Lo t o (name), the lid Pry 0 i. (title), known to me
to be the same person whose name is subscribed to the foregoing Option Tower and Ground
Space Lease, appeared before me this day in person and acknowledged that (he) (she) signed the
said Lease as (his) (her) free and voluntary act for the uses and purposes therein stated.
Given under my hand and seal this 11 "=4day of J uN& , 206 9
OFFICIAL SNAL"
KA'tiH. M M KUAi7.iER
Noll ry rwic. Sws of IIIMWA
My Caonnialoa + Ov�v'o12
STATE OF ILLINOIS
COUNTY OF COOK
Notary Public
My commission expires 1� .
I, the undersigned, a, notary public in and for the State and County aforesaid, do hereby
certify that Steven T. Campbell, Vice President and Treasurer, known to me to be the same
person whose name is subscribed to the foregoing Option Tower and Ground Space Lease,
appeared before me this day in person and acknowledged that, pursuant to his authority, he
signed the said Lease as his free and voluntary act on behalf of the named Tenant corporation,
for the uses and purposes therein stated. _)
Given under. my hand and seal this day of 2067
OFFICIAL SEAL
pONiAI 17 1_, I71CKE
N
otary Public - State of Illinois
mission Expires August 23, 2A11
Gam`
Notary Pt
My commission expires.
i? U.S. Cellular
Page 13 of 16
version 1/08a
PROPOSED LEASE AREA DESCRIPTION:
THAT PART OF LOT 46 IN COONEY HEIGHTS THIRD ADDITION TO MCHENRY, A
SUBDIVISION OF PART OF THE NORTHEAST QUARTER OE' SECTION 34, TOWNSHIP 45
NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE
PLAT THEREOF RECORDED MAY LOTH, 1955 AS DOCUMENT NUMBER 292379 IN BOOK 12
PLATS, PAGE 23, DESCRIBED AS FOLLOWS:
COMMENCING AT THE WESTERLY MOST CORNER OF SAII) LOT 46; THENCE SOUTH 44
DEGREES 25 MI14UTES 32 SECONDS EAST ALONG THE SOUTHWESTERLY LINE OF SAID
LOT 46, A DISTANCE OF 108.79 FEET; THENCE NORTH 50 DEGREES 46 MINUTES 56
SECONDS EAST, 13.41 FEET TO THE POINT OF BEGINNING; THENCE NORTH 32
DEGREES 35 MII4UTES 02 SECONDS EAST, 43.61 FEET:; THENCE SOUTH 59 DEGREES
51 MINUTES 09 SECONDS EAST, 28.03 FEET; THENCE SOUTH 28 DEGREES 56
MINUTES 04 SECONDS WEST, 50.38 FEET; THENCE NORTH 47 DEGREES 27 MINUTES
34 SECONDS WEST, 31.69 FEET TO THE POINT OF BEGINNING, CONTAINING 1386.60
SQUARE FEET, ALL IN MCHENRY COUNTY, ILLINOIS.
PROPOSED ACCESS EASEMENT DESCRIPTION:
THAT PART OF LOT 46 IN COONEY HEIGHTS THIRD ADDITION TO MCHENRY, A
SUBDIVISION OF PART OF THE NORTHEAST QUARTER OF SECTION 34, TOWNSHIP 45
NORTH, RANGE 3 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE
PLAT THEREOF RECORDED MAY LOTH, 1955 AS DOCUMENT NUMBER 292379 IN BOOK 12
PLATS, PAGE 23, DESCRIBED AS FOLLOWS:
COMMENCING AT THE WESTERLY MOST CORNER OF SAID LOT 46; THENCE NORTH 46
DEGREES 11 MINUTES 35 SECONDS EAST ALONG THE SOUTHEASTERLY LINE OF SIOUX
LANE SAID LINE ALSO BEING THE NORTHWESTERLY LINE OF SAID LOT 46, 19.52
FEET TO THE POINT OF BEGINNING; THENCE CONTINUING NORTH 46 DEGREES 11
MINUTES 35 SECONDS EAST ALONG SAID LINE, 12.00 FEET; THENCE SOUTH 43
DEGREES 48 MINUTES 25 SECONDS EAST, 21.04 FEET; THENCE SOUTH 46 DEGREES
11 MINUTES 35 SECONDS WEST, 12.00 FEET; THENCE NORTH 43 DEGREES 48
MINUTES 25 SECONDS WEST, 21.04 FEET TO THE POINT OF BEGINNING, CONTAINING
252.45 SQUARE FEET, ALL IN MCHENRY COUNTY. ILLINOIS.
PROPOSED UTILITY EASEMENT DESCRIPTION:
THAT PART OF LOTS 45 AND 46 IN COONEY HEIGHTS THIRD ADDITION TO MCHENRY,
A SUBDIVISION OF PART OF THE NORTHEAST QUARTER OF SECTION 34, TOWNSHIP 45
NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE
PLAT THEREOF RECORDED MAY LOTH, 1955 AS DOCUMENT NUMBER 292379 IN BOOK 12
PLATS, PAGE 23, DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY MOST CORNER OF SAID LOT 46; THENCE SOUTH 44
DEGREES 25 MINUTES 32 SECONDS EAST ALONG THE SOUTHWESTERLY LINE OF SAID
LOT 46, A DISTANCE OF 108.79 FEET; THENCE NORTH 50 DEGREES 46 MINUTES 56
SECONDS EAST, 13.41 FEET TO THE WESTERLY MOST CORNER OF HEREON DESCRIBED
LEASE AREA; THENCE SOUTH 47 DEGREES 27 MINUTES 34 SECONDS EAST ALONG THE
SOUTHWESTERLY LINE OF SAID LEASE AREA, 31.69 FEET TO THE SOUTHERLY MOST
CORNER OF SAID LEASE AREA; THENCE SOUTH 50 DEGREES 55 MINUTES 13 SECONDS
WEST, 25.14 FEET; THENCE NORTH 44 DEGREES 25 MINUTES 32 SECONDS WEST,
131.42 FEET; THENCE SOUTH 46 DEGREES 11 MINUTES 35 SECONDS WEST, 31.00
FEET TO A POINT ON THE SOUTHWESTERLY LINE OF THE NORTH 41 FEET OF SAID
LOT 45; THENCE NORTH 44 DEGREES 25 MINUTES 32 SECONDS WEST ALONG SAID
SOUTHWESTERLY LINE, 8.00 FEET TO A POINT ON THE SOUTHEASTERLY LINE OF
SIOUX LANE SAID LINE ALSO BEING THE NORTHWESTERLY LINE OF SAID LOT 45, A
DISTANCE OF 41.00 FEET TO THE POINT OF BEGINNING, CONTAINING 2093.13
SQUARE FEET, ALL IN MCHENRY COUNTY, ILLINOIS.
PARENT PARCEL DESCRIPTION:
THE NORTH 41.0 FEET OF LOT 45 AND ALL OF LOTS 46, 47 AND 48 IN COONEY
HEIGHTS THIRD ADDITION TO MCHENRY, A SUBDIVISION OF PART OF THE NORTHEAST
QUARTER OF SECTION 34, TOWNSHIP 45 NORTH, RANGE 8 EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED MAY LOTH, 1955
AS DOCUMENT NUMBER 292379 IN BOOK 12 PLATS, PAGE 23, IN MCHENRY COUNTY,
ILLINOIS
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