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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 SECTION 2: All Ordinances or parts thereof in conflict with the terms and provisions hereof are hereby repealed to the extent of such conflict.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 Page 1 of 15 version 01/08a Site Name: Site Number: 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. Page 2 of 15 version 1/08a Site Name: Site Number: 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 Page 3 of 15 version 1/08a Site Name: Site Number: 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"). Page 4 of 1 version 1/08a Site Name: Site Number: 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 Page 5 of 15 version 1/08a Site Name: Site Number: 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 Page 6 of 15 version 1 /08a Site Name: Site Number: 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. Page 7 of 15 version 1/08a Site Name: Site Number: 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. Page 9 of 15 version 1/08a Site Name: Site Number- 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. Page 9 of 15 version 1/08a Site Name- Site Number. 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 C—)(K i b I t- 3 1 r O y r- O 4p G �"p a "� � /♦IG � \�'QTr z fxs \y F Q, AV O 0 E NCA 5 pN ss H i I 11 ■L1 � r Q O O o If L. 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