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HomeMy WebLinkAboutOrdinances - ORD-16-1807 - 09/06/2016 - EXECUTION OF GRANT OF EASEMENT TO LANDMARK DIVIDENORDINANCE NO. ORD-16-1807 AN ORDINANCE AUTHORIZING MAYOR'S EXECUTION OF A GRANT OF EASEMENT AND ASSIGNMENT OF LEASE AGREEMENT BETWEEN THE CITY OF MCHENRY AND LANDMARK DIVIDEND LLC FOR PROPERTY LOCATED AT 4225 SIOUX LANE WHEREAS, the City of McHenry ("City"), McHenry County, Illinois is a home rule municipality as contemplated under Article VII, Section 6, of the Constitution of the State of Illinois and the passage of this Ordinance constitutes an exercise of the City's home rule powers and functions as granted in the Constitution of the State of Illinois; and WHEREAS, the City is the ("GRANTOR") and Landmark Dividend LLC is the ("GRANTEE") in a Grant of Easement and Assignment of Lease Agreement ("AGREEMENT"). NOW THEREFORE BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS AS FOLLOWS: SECTION 1: The Grant of Easement and Assignment of Lease Agreement dated August 31, 2016 is hereby approved and the conditions, enforcement, maintenance, time period and dollar amount are consistent with the Option Agreement(s) and with the condition New Cingular does not exercise their Option of First Right of Refusal and T-Mobile authorizes the approval for Landmark Dividend to have their lease assigned. SECTION 2: The Mayor and City Clerk are hereby authorized to affix their signatures as Mayor and City Clerk to said Agreement. Complete and accurate copies of said agreements is attached to this ordinance as Exhibit A and incorporated herein by reference. 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 6th-DAY OF SEPTEMBER 2016. Voting Aye: CURRY, Voting Nay: N ONE Not Voting: NONE Abstain: NONE Absent: WIMhER ATTEST: Deputy Cit Cler CONU N, PETERSON, SCHAEFER, GLAD, SNNTI Mayor Susari E. Low Exhibit A Grant of Easement and Assignment of Lease Agreement / V" r f -) "� I PIN: 09-34-279-002 STATE OF: ILLINOIS COUNTY OF: IVICEENRY Document Date: October 21, 2016 . ....................... GRANTOR: CITY OF MCHENRY, A MUNICIPAL CORPORATION Address: 333 8 Green St McHenry, IL 60050 GRANTEE: LANDMARK INFRASTRUCTURE HOLDING COMPANY LLC Address: P.O. Box 3429 El Segundo, CA 90245 Legal Description: Attached as Exhibit A. Prepared by: Landmark Dividend LLC 2141 Rosecrans Ave, Suite 2 100 El Segundo, CA 90245 TC165426 Return after recording to. Fidelity National Title Group Attu: Melissa Cater 7130 Glen Forest Drive #300 Richmond, VA 23226 FNF 23 783 768 TC E=t & Asp ver 3,0 /JP TC165426/ City Of McHenry EASEMENT AND ASSIGNMENT OF LEASE AGREEMENT U-Mobile) This Easement and Assignment of Lease Agreement (this "AUEement") dated October 21 2 2016 (the "Effective Date") is by and between CITY OF MeHENRY, a municipal corporation ('grantor"), and LANDMARK INFRASTRUCTURE HOLDING COMPANY LLC, a Delaware limited liability company ("Grantee); and WHEREAS Grantor owns certain real property located at: 4225 Sioux Ln, McHenry, IL 60050 ("Property'); and more particularly described in Exhibit A attached hereto; and WHEREAS Grantor intends to grant to Grantee an exclusive easement (the "Telecom Easement") in, to, under and over a certain portion of the Property described in Exhibit B attached hereto (the "Telecom Easement Area") for telecommunications purposes, and a non-exclusive easement (the "Access Easement") in, to, under and over certain portions of the Property described in Exhibit Q attached hereto (the "Access Easement Area") for ingress, egress, maintenance and utility service for and to the Telecom Easement (the Telecom Easement and the Access Easement may be collectively referred to herein as the "Easement") for the length of the "Term" as defined below: and WHEREAS Grantor intends to sell, assign, set over, convey and transfer the existing telecommunications lease(s) or license(s) ("Lease) more particularly described in Exhibit D to Grantee; and WHEREAS Grantor intends to allow Grantee to use the Easement in order that Grantee may lease space to Tenants in the telecommunications business; and NOW THEREFORE, In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. - GRANT OF EASEMENT. Grantor hereby grants to Grantee an exclusive easement over the Telecom Easement Area for the purpose of leasing space on the Property to telecommunications tenant(s) and uses associated vdth the exercise rights of telecommunications tenants under such leases for the length of the "term" as defined below, 2. TERM. Commencing on October 21 2016 (the "Commencement Date"), the Term of this Agreement shall be 148 months. 3. TERMINATION. Grantor may not terminate this Agreement; provided however, that in the event that Grantee voluntarily ceases to use the Easement for a continuous period of five (5) years, the Easement shalt be deemed abandoned and this Agreement shall automatically terminate. 4. ASSIGNMENT OF LEAS As part of the consideration provided for this Agreement, Grantor hereby assigns and conveys all of its right, title and interest in and to the Lease(s), more particularly described in Exhibit D. Grantor shall retain and continue to faithfully perform and TC Esmt & Asp ver 3.0 /JP TC165426/ City Of McHenry discharge any and all of Grantor's obligations as lessor under the Lease(s) and Grantee assumes no obligations thereunder. Notwithstanding anything to the contrary as set forth herein, Grantor reserves the right, in its sole discretion to enforce paragraphs 6 —10, 13 and 17-18 of the Lease, subject to the following terms and conditions: a. Grantor shall provide Grantee with written notice that it reasonably believes the tenant is in default under the Lease. Upon receipt of such written notice, Grantee shall have twenty (20) days to notify Grantor in writing of its election to enforce the provisions of the Lease. If Grantee elects to enforce the provisions of the Lease, then it shall use all commercially reasonable efforts in a reasonable timeframe under the circumstances to enforce the Existing Telecom Agreement to include without limitation, seeking a remedy at law or equity from a court of competent jurisdiction to enforce the provisions of the Lease. b. If Grantee elects not to enforce the terms of the Existing Telecom Agreement or fails to notify Grantor in writing of its election within the foregoing twenty (20) day period, then Grantor may enforce the foregoing Lease provisions. c. However, notwithstanding anything to the contrary as set forth herein, in the event of such breach or default of the Lease provisions is of an emergency nature, which imminently threatens the health, safety and/or welfare of Grantor's residents or property or imminently threatens the structural integrity or operation and/or functioning of the city water storage tower, then Grantor may immediately enforce such provision(s) of the Lease against such tenant; provided however, such breach or event of default thereunder shall also be a violation of any applicable statute, code, ordinance or resolution under federal, state, local law or agency -issued permit to Grantor; thereafter, Grantor shall notify Grantee of its enforcement action as soon as practicable. d. Any remedy or recovery for Grantor must be limited to compensatory damages and/or specific performance. Under no circumstances shall Grantor be permitted to terminate the Lease or the Telecom Easement or collect any rent or evict or dispossess Telecom Tenant from the Telecom Easement or leasehold estate; except, that Grantor may additionally seek from a court of competent jurisdiction the right to terminate the Lease or the Telecom Easement or evict or dispossess such tenant from the Telecom Easement or leasehold estate under the two following circumstances: 1) where the default or breach threatens the health, safety and/or welfare of Grantor's residents or property; or 2) where the breach threatens the structural integrity or operation and/or functioning of the city's water storage tower. Other than these two exceptions, Grantor shall not be permitted to terminate the Existing Telecom Agreement or the Telecom Easement or collect any rent or evict or dispossess such tenant from the easement or leasehold estate. Landmark agrees to reasonably cooperate with the City by providing any additional documentation within its reasonable possession or control to enable the City to enforce the foregoing provisions under the Lease TC Es at & Asp ver 3_0 /7P TCI65426/ City Of McHenry S. NON-EXCLUSIVE ACCESS EASEMENT. As part of the consideration for this Agreement, Grantor hereby grants to Grantee the Access Easement in, to, under and across the Property adequate to allow ingress and egress, operation, maintenance of and utility service to the Telecom Easement Area. b. REPRESENTATIONS AND COVENANTS OF GRANTOR. Grantor represents and warrants to Grantee, as of the date hereof, that: a. This Agreement and any other documents executed by Grantor in connection with it constitute the legal, valid and binding obligation of Grantor, enforceable against Grantor in accordance with their terms. b. The execution, delivery and performance by Grantor of this Agreement does not and will not violate or conflict with any provision of Grantor's organizational documents (if Grantor is an organization) or of any agreement to which Grantor is a party including, without limitation, permits, mortgages and deeds of trust, or by which Grantor or the Property is bound and will not violate or conflict with any law, rule, regulation, judgment, order or decree to which Grantor is subject. c. There is no pending or threatened action, judgment, order decree or proceeding (including any bankruptcy, insolvency, eminent domain, zoning or other land use regulation actions) that, if determined against Grantor, would adversely affect Grantor's ability to grant the Easement or such other documents or to perform its obligations hereunder or thereunder, or limit Grantee's ability to use the Easement as contemplated herein. Grantor has received no notice from any governmental or quasi -governmental authority either that the Property or the use thereof violates any statutes, ordinances, orders or regulations affecting any portion of the Property. d. Grantor owns one hundred percent (100%) of the fee title to the Property and the lessor's interest in and to the Lease(s). e. To the best of its knowledge, Grantor has not previously deeded, granted, assigned, mortgaged, pledged, hypothecated, alienated or otherwise transferred any of its right, title and interest in and to the Lease(s), or any portion of the Property the Easement occupies, except as expressly disclosed to Grantee in writing. Except for the Lease(s), Grantor has not executed or otherwise entered into any leases, tenancies, license or concession agreements, occupancy agreements or other agreements with respect to rights that would adversely affect Grantee's, or Grantee's tenants, possession or occupancy of any portion of the Easement or use of the Property pursuant to this Agreement or the Lease(s). £ Grantor shall not allow or permit a breach or default to occur under the Leases by Grantor and Grantor shall comply with all applicable laws which may affect the Property. g. Grantor shall not settle or compromise any insurance claim or condemnation award relating to the Easement without Grantee's prior written approval, which shall not be unreasonably withheld. TC Esmt & Asgn ver 3.0 /7P TC 16S426/ City Of McHenry h. Grantor shall not, nor shall Grantor permit its lessees, licensees, employees, invitees or agents to use any portion of the Property, or the Easement in a way which interferes with the operations of the tenants under the Lease, or any other of Grantee's future lessees or licensees, or to interfere with the Access Easement. Such interference shall be deemed a material breach by Grantor. 7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties hereto and the successors and assigns of the parties to this Agreement. This Agreement shall ran with the land upon which the Easement is located, until the expiration of the Term, and Grantor shall, in any and all deeds or other documents related to the We, conveyance, assignment, mortgage, pledge, or other encumbrance or transfer of the Property, expressly provide that the Property is subject to all rights, liabilities and obligations under this Agreement (including without limitation, with respect to the Easement). Grantor hereby expressly acknowledges and agrees that Grantee may from time to time sell, convey, assign, mortgage, pledge, encumber, hypothecate, securitize or otherwise transfer some or all of Grantee's right, title and interest in and to this Agreement, the Easement, the Telecom Easement Area and/or the Access Easement Area without notice to or consent of Grantor. S. ENVIRONMENTAL REPRESENTATIONS. a. Grantor Environmental Representation. Grantor represents that, to the best of its knowledge, it has no knowledge of any substance, chemical or waste (collectively "Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. Grantor shall not introduce or use (or permit the use of) any Hazardous Substance on the Property in violation of any applicable federal, state or local environmental laws. Grantor shall be responsible for (and shall promptly conduct any investigation and remediation as required by any applicable environmental laws) all spills or other releases of any Hazardous Substance caused by Grantor, that have occurred or which may occur on the Property- b. Grantee Environmental Representations. Grantee shall not introduce or use any Hazardous Substance on the Property or the Easement in violation of any applicable federal, state or local environmental laws. Notwithstanding the foregoing, Grantee shall not be responsible for any Hazardous Substances arising or present on or before the Effective Date. Liability of Grantee for any claims with respect to any Hazardous Substances at the Property or the Easement shall be limited to contamination which is shown by clear evidence to have been solely caused by a release of a Hazardous Substance by Grantee after the Effective Date, and in violation of any applicable federal, state or local environmental laws. c. Mutual Indemnification. Each party agrees to defend, 'indemnify, and hold harmless the other from and against any and all administrative and judicial actions and rulings, claims, causes of action, demands and liability including, but not limited to damages, costs, expenses, assessments, penalties, fines, cleanup, remedial, removal or restoration work required by any governmental authority, losses, judgments and reasonable attorneys' fees that the indemnified party may suffer or incur due to the existence or discovery of any Hazardous Substance on the Property caused by the other party. This indemnification shall also apply to the migration of any TC Esrnt & Asp ver 3.0 /JP TC165426/ City Of McHany Hazardous Substance to other properties, and the release of any Hazardous Substance into the environment that relate to or arise from the indemnitor's activities on the Property. Grantor agrees to defend, indemnify, protect and hold Grantee harmless from claims resulting from actions on the Property caused by Grantor, and during the Term of, this Agreement. This indemnification shall survive the termination or expiration of this Agreement. 9. NOTICES. All notices, requests, demands and other communications hereunder shall be delivered by Certified Mail Return Receipt Requested, and/or a nationally recognized Overnight courier. Notice shall be deemed accepted upon proof of delivery. Notices shall be delivered: As to Grantor: City of McHenry 333 S Green St McHenry, IL 60050 As to Grantee: c/o Landmark Dividend LLC 2141 Rosecrans Ave., Suite 2100 El Segundo, CA 90245 Attn: Legal Dept. 10. DEFAULT. It shall be an "Event of Default" if either Grantor or Grantee fails to observe or perform any of the terms, conditions or its respective obligations set forth in this Agreement. Upon receiving written notice of such a default or breach of this Agreement, the defaulting party shall have sixty (60) days to cure such default. Notwithstanding anything herein to the contrary, if the required cure of the noticed default cannot reasonably be completed by Grantee within such 60-day period, Grantee's failure to perform shall not constitute an Event of Default so long as Grantee undertakes to cure the failure promptly and diligently and continuously pursues the cure thereof to completion. In the event that the defaulting party fails to cure such default within the cure period, the non -defaulting party shall be entitled to exercise any rights permitted by applicable law. 11. AGREEMENT FULLY PERFORMED. Notwithstanding anything herein to the contrary, this Agreement is deemed to be fully performed by Grantee as of the Commencement Date. In no event shall this Agreement be deemed an executory contract for purposes of the United States Bankruptcy Code, as amended (the "Code"), and this Agreement may not be rejected pursuant to Section 365 of the Code. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF. (b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING TO ENFORCE OR INTERPRET THIS AGREEMENT. (c) EACH PARTY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE CIRCUIT LOUT IN McHENRY COUNTY, AND EACH PARTY WAVES ANY TC Fsmt & Asp ver 3.0 /JP TC165426/ City of McHenry OBJECTION WHICH IT MAY HAVE TO VENUE IN SUCH COURT, WHETHER ON THE BASIS OF INCONVENIENT FORUM OR OTHERWISE. {signatures follow on nextpagel TC Esmt & Asgn ver 3.0 /JP TC165426/ City Of McHenry IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have caused this Agreement to be duly executed as of the date first written above. CITY OF McHENRY, a municipal corporation BY: Low Its: Mayor Date: ........... . . ........ . ........ STATE OF COUNTY OF On 0406ps- 117 2016, before me, 171 A Qi A M 61" 6 HW a NoPry Public in and for said County and State, personally f appeared '-Sit-S-Ao e - Low , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify -under PENALTY OF PERJURY under the laws of the State of i n of -s that the foregoing paragraph is true and correct. WITNESS my hand and official Seal. �4,Lup- rK LLuae, kh Notary Public fi My Commission Expires: 1. 7"OFF1 L SEAL" marcla M. Geraghty t 0 lflr* Notary Public, SMte of llfjrg�s i"I"I'440 "-40i'040�W TC Banit & Asga ver 3.0 /JP TC 165426/ City Of McHenry IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have caused this Agreement to be duly executed as of the date first written above. LANDMARK INFRASTRUCTURE HOLDING COMPANY LLC, a Delaware limited liability company By. ... Name: ... ......... ...... i -- Cpwta- Title: Authorized Signatory Date: k0 lj5l-111— A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Los Angeles On 2016, before me, Jennifer Pouliot -Jones a Notary Public, personally appeared Daniel R. Parsons who proved to me on the basis of satisfactory evidence to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ics), mid that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. &ASNA.-al 11 7EIN"N'hIFIER14 P!0ft10T-j(,. Witness my hand and official seal. otary Public Z as Co mmla 21 M Comm. Ex ire Signatur (Seal) JENNIFER POULiOT-JONES Notary Public - CalliOrYdA Los Angeles County Commission # 2167580 M1 C;�m. Ex iras ,iui 20, 2020 TC Esmt & Asp ver 3.0 /JP TC1 65426/ City Of MoRemy An interest in land, said interest being over a portion of the following described parent parcel: 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 10, 1955 as Document No. 292379 in Book 12 of Plats, Page 23, in McHenry County Illinois. AND BEING the same property conveyed to City of McHenry, a municipal corporation from Martin Cooney by Indenture dated August 11, 1960 and recorded August 29, 1960 in Deed Book 636, Page 484. Tax. Parcel No. 09-34-279-002 TC ismi & Asgu ver 3.01JF TC 165426/ City Of McHenry E-XHH31T B EQUIPMENT EASEMENT "A" PART OF LOT 46 IN COONEY HEIGHTS THIRD SUBDIVISION TO MCHENRY, BOOK 12, PAGE 23 AND DOCUMENT NO.292379, BEING PART OF THE SOUTHEAST QUARTER (SE1/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION THIRTY- FOUR (34), TOWNSHIP FORTY-FIVE (45) NORTH, RANGE EIGHT (8) EAST OF THE THIRD PRINCIPAL MERIDIAN IN THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS CONTAINING 470 SQUARE FEET (0.011 ACRES) OF LAND AND BEING DESCRIBED BY: COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 46 OF SAID COONEY HEIGHTS THIRD SUBDIVISION TO MCHENRY, BOOK 12, PAGE 23 AND DOCUMENT NO. 292379; THENCE S461-13'-18"W 26.79 FEET ALONG THE WESTERLY LINE OF SAID LOT 46; THENCE S430-46'-42"E 79.65 FEET TO THE POINT OF BEGINNING; THENCE N32°-23`-21 "E 23.50 FEET; THENCE S571-36'-39"E 20.00 FEET; THENCE S32°- 23'-21 "W 23,50 FEET; THENCE N57°-36'-39"W 20.00 FEET TO THE POINT OF BEGINNING. TC 'Esmt & Asp ver 3.0 /JP TC165426/ City Of McHenry NON-EXCLUSIVE UTILITY EASEMENT and NON-EXCLUSIVE ACCESS EASEMENT SPACE The part of the Property, described in Exhibit A hereto, on which any equipment exists on the Effective Date together with the portion of the Property used by utility providers and leased by Grantor as the lease premises under each Telecom Tenant Lease including but not limited as follows: Utilities and Telecommunications. Grantee is herein granted, consistent with each Telecom Tenant Lease, a non-exclusive easement in, to, under and over the portions of the Property for ingress and egress to the Telecom Easement Area, shaft ways, chase ways, soffits, risers, columns, crawl spaces, rafters, or any other space for placement of cables, wiring, etc,, which is necessary to install, operate and maintain the telecommunications equipment and/or personal property, together with the right to use such easement for the development, repair, maintenance and removal of utilities and/or cables providing service to the Easement and any related activities and uses. Access. Grantee is herein granted, consistent with each Telecom Tenant Lease, all rights of ingress and egress to and from the Telecom Easement Area, in, to, under, and across the Property and through any buildings thereon, described in Exhibit A hereto, providing access to a publicly dedicated roadway, including but not limited to Sioux Lane, along with the right to use such access easement for the development, repair, maintenance and removal of utilities providing service to the Telecom Easement Area and any related activities and uses. TC Esmt & Asp ver 3.0 /JP TC165426/ City Of McHenry "WAM (TC165426 — T-Mobile) That certain unrecorded Site Agreement dated 03/01/2004, by and between City of McHenry, an Illinois municipal corporation ("Lessor") and T-Mobile Central LLC, a Delaware limited liability company, as successor in interest to VoiceStream. GSM I Operating Company, LLC d/b/a T- Mobile Inc., ("Lessee"), for the property located at 4225 Sioux Lane, McHenry, IL 60050, together with any amendments, modifications or assignments, together with all amendments, modifications and/or assignments for which a Memorandum of Agreement dated 06/02/2004 is duly recorded on 07/27/2004, as Instrument No. 2004110068689, of the McHenry County Registry. TC Esmt & Asgn ver 3.0 1JP TC1 654261 City Of McHenry W511,1121 STATE OF: TELINOIS COUNTY OF: MCITENRY Document Date: October28,2016 .... . ..... ...... -- .... . .......... . ............ . . ...... PIN: 09-34-279-002 GRANTOR: CITY OF MCHENRY, A MUNICIPAL CORPORATION Address: 333S Green St McHenry, IL 60050 GRANTEE: LANDMARK INFRASTRUCTURE HOLDING COMPANY LLC Address: P.O. Box 3429 El Segundo, CA 90245 Legal Description: Attached as Exhibit A. Prepared by: Landmark Dividend LLC 2141 Rosecrans Ave, Suite 2 100 El Segundo, CA. 90245 TC165425 Return after recording to. Fidelity National Title Group Attu: Melissa Cater 7130 Glen Forest Drive #300 Richmond, VA 23226 FNF 23 783 768 TC Esmt & Asp ver 3.0 /JP TC1 65425/ City Of McHenry F=010 RANUM This Easement and Assignment of Lease Agreement (this "Agreement") dated October 28 -, 2016 (the "Effective Date") is by and between CITY OF McHENRY, a municipal corporation ("Grantor"), and LANDMARK INFRASTRUCTURE HOLDING COMPANY LLC, a Delaware limited liability company C'Grante "); and WHEREAS Grantor owns certain real property located at: 4225 Sioux Ln, McHenry, IL 60050('Prope '); and more particularly described in Exhibit A attached hereto; and WHEREAS Grantor intends to grant to Grantee an exclusive casement (the "Telecom Easement') in, to, under and over a certain portion of the Property described in Exhibit B attached hereto (the "Telecom Easement Area") for telecommunications purposes, and a non-exclusive casement (the "Access Easement") in, to, under and over certain portions of the Property described in Exhibit C attached hereto (the "Access Easement Area") for ingress, egress, maintenance and utility service for and to the Telecom Easement (the Telecom Easement and the Access Easement may be collectively referred to herein as the "Easement") for the length of the "Term" as defined below: and WHEREAS Grantor intends to sell, assign, set over, convey and transfer the existing telecommunications lease(s) or license(s) ("Lease") more particularly described in Exhibit Q to Grantee; and WHEREAS Grantor intends to allow Grantee to use the Easement in order that Grantee may lease space to Tenants in the telecommunications business; and NOW THEREFORE, In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.* 1. - GRANT OF EASEMENT. Grantor hereby grants to Grantee an exclusive easement over the Telecom Easement Area for the purpose of leasing space on the Property to telecommunications tenant(s) and uses associated with the exercise rights of telecommunications tenants under such leases for the length of the "terra" as defined below. 2. TERM. Commencing on October 28 2016 (the "Commencement Date"), the Term of this Agreement shall be 270 months. 3. TERMINATION. Grantor may not terminate this Agreement; provided however, that in the event that Grantee voluntarily ceases to use the Easement for a continuous period of five (5) years, the Easement shall be deemed abandoned and this Agreement shall automatically terminate. 4. ASSIGNMENT OF LEASE(S). As part of the consideration provided for this Agreement, Grantor hereby assigns and conveys all of its right, title and interest in and to the Lease(s), more particularly described in Exhibit D. Grantor shall retain and continue to faithfully perform and TC Esmt & Asgn ver 3.0 (JP T)C165425/ City Of MoHenry discharge any and all of Grantor's obligations as lessor under the Lease(s) and Grantee assumes no obligations thereunder. Notwithstanding anything to the contrary as set forth herein, Grantor reserves the right, in its sole discretion to enforce paragraphs 7-15, and 21 of the Lease, subject to the following terms and conditions: a. Grantor shall provide Grantee with written notice that it reasonably believes the tenant is in default under the Lease. Upon receipt of such written notice, Grantee shall have twenty (20) days to notify Grantor in writing of its election to enforce the provisions of the Lease. If Grantee elects to enforce the provisions of the Lease, then it shall use all commercially reasonable efforts in a reasonable timeframe under the circumstances to enforce the Existing Telecom Agreement to include without limitation, seeking a remedy at law or equity from a court of competent jurisdiction to enforce the provisions of the Lease. b. If Grantee elects not to enforce the terms of the Existing Telecom Agreement or fails to notify Grantor in writing of its election within the foregoing twenty (20) day period, then Grantor may enforce the foregoing Lease provisions. c. However, notwithstanding anything to the contrary as set forth Herein, in the event of such breach or default of the Lease provisions is of an emergency nature, which imminently threatens the health, safety and/or welfare of Grantor's residents or property or imminently threatens the structural integrity or operation and/or functioning ofthe city water storage tower, then Grantor may immediately enforce such provision(s) of the Lease against such tenant; provided however, such breach or event of default thereunder shall also be a violation of any applicable statute, code, ordinance or resolution under federal, state, local law or agency -issued permit to Grantor; thereafter, Grantor shall notify Grantee of its enforcement action as soon as practicable. d.Any remedy or recovery for Grantor must be limited to compensatory damages and/or specific performance. Under no circumstances shall Grantor be permitted to terminate the Lease or the Telecom Easement or collect any rent or evict or dispossess Telecom Tenant from the Telecom Easement or leasehold estate; except, that Grantor may additionally seek from a court of competent jurisdiction the right to terminate the Lease or the Telecom Easement or evict or dispossess such tenant from the Telecom Easement or leasehold estate under the two following circumstances: 1) where the default or breach threatens the health, safety and/or welfare of Grantor's residents or property; or 2) where the breach threatens the structural integrity or operation and/or functioning of the city's water storage tower. Other than these two exceptions, Grantor shall not be permitted to terminate the Existing Telecom Agreement or the Telecom Easement or collect any rent or evict or dispossess such tenant from the easement or leasehold estate. e. Landmark agrees to reasonably cooperate with the City by providing any additional documentation within its reasonable possession or control to enable the City to enforce the foregoing provisions under the Lease TC Esrnt & Asp ver 3.0 /7P TC165425/ City Of McHenry 5. NON-EXCLUSIVE ACCESS EASEMENT. As part of the consideration for this Agreement, Grantor hereby grants to Grantee the Access Easement in, to, under and across the Property adequate to allow ingress and egress, operation, maintenance of and utility service to the Telecom Easement Area. b. REPRESENTATIONS AND COVENANTS OF GRANTOR. Grantor represents and warrants to Grantee, as of the date hereof, that: a. This Agreement and any other documents executed by Grantor in connection with it constitute the legal, valid and binding obligation of Grantor, enforceable against Grantor in accordance with their terms. b. The execution, delivery and performance by Grantor of this Agreement does not and will not violate or conflict with any provision of Grantor's organizational documents (if Grantor is an organization) or of any agreement to which Grantor is a party including, without limitation, permits, mortgages and deeds of trust, or by which Grantor or the Property is bound and will not violate or conflict with any law, rule, regulation, judgment, order or decree to which Grantor is subject. c. There is no pending or threatened action, judgment, order decree or proceeding (including any bankruptcy, insolvency, eminent domain, zoning or other land use regulation actions) that, if determined against Grantor, would adversely affect Grantor's ability to grant the Easement or such other documents or to perform its obligations hereunder or thereunder, or limit Grantee's ability to use the Easement as contemplated herein. Grantor has received no notice from any governmental or quasi -governmental authority either that the Property or the use thereof violates any statutes, ordinances, orders or regulations affecting any portion of the Property. d. Grantor owns one hundred percent (100%) of the fee title to the Property and the lessor's interest in and to the Lease(s). e. To the best of its knowledge, Grantor has not previously deeded, granted, assigned, mortgaged, pledged, hypothecated, alienated or otherwise transferred any of its right, title and interest in and to the Lease(s), or any portion of the Property the Easement occupies, except as expressly disclosed to Grantee in writing. Except for the Lease(s), Grantor has not executed or otherwise entered into any leases, tenancies, license or concession agreements, occupancy agreements or other agreements with respect to rights that would adversely affect Grantee's, or Grantee's tenants, possession or occupancy of any portion of the Easement or use of the Property pursuant to this Agreement or the Lease(s). f. Grantor shall not allow or permit a breach or default to occur under the Leases by Grantor and Grantor shall comply with all applicable laws which may affect the Property. g. Grantor shall not settle or compromise any insurance claim or condemnation award relating to the Easement without Grantee's prior written approval, which shall not be unreasonably withheld. TC Esmt & Asp ver 3.0 /JF TC1654251 City Of McHenry h. Grantor shall not, nor shall Grantor permit its lessees, licensees, employees, invitees or agents to use any portion of the Property, or the Easement in a way which interferes with the operations of the tenants under the Lease, or any other of Grantee's future lessees or licensees, or to interfere with the Access Easement. Such interference shall be deemed a material breach by Grantor. 7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties hereto and the successors and assigns of the parties to this Agreement. This Agreement shall run with the land upon which the Easement is located, until the expiration of the Term, and Grantor shall, in any and all deeds or other documents related to the sale, conveyance, assignment, mortgage, pledge, or other encumbrance or transfer of the Property, expressly provide that the Property is subject to all rights, liabilities and obligations under this Agreement (including without limitation, with respect to the Easement). Grantor hereby expressly acknowledges and agrees that Grantee may from time to time sell, convey, assign, mortgage, pledge, encumber, hypothecate, securitize or otherwise transfer some or all of Grantee's right, title and interest in and to this Agreement, the Easement, the Telecom Easement Area and/or the Access Easement Area without notice to or consent of Grantor. a. Grantor Environmental Representation. Grantor represents that, to the best of its knowledge, it has no knowledge of any substance, chemical or waste (collectively "Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. Grantor shall not introduce or use (or permit the use of) any Hazardous Substance on the Property in violation of any applicable federal, state or local environmental laws. Grantor shall be responsible for (and shall promptly conduct any investigation and remediation as required by any applicable environmental laws) all spills or other releases of any Hazardous Substance caused by Grantor, that have occurred or which may occur on the Property. b. Grantee Environmental Representations. Grantee shall not introduce or use any Hazardous Substance on the Property or the Easement in violation of any applicable federal, state or local environmental laws. Notwithstanding the foregoing, Grantee shall not be responsible for any Hazardous Substances arising or present on or before the Effective Date. Liability of Grantee for any claims with respect to any Hazardous Substances at the Property or the Easement shall be limited to contamination which is shown by clear evidence to have been solely caused by a release of a Hazardous Substance by Grantee after the Effective Date, and in violation of any applicable federal, state or local environmental laws. c. Mutual Indemuification. Each party agrees to defend, indemnify, and hold harmless the other from and against any and all administrative and judicial actions and rulings, claims, causes of action, demands and liability including, but not limited to damages, costs, expenses, assessments, penalties, fines, cleanup, remedial, removal or restoration work required by any governmental authority, losses, judgments and reasonable attorneys' fees that the indemnified party may suffer or incur due to the existence or discovery of any Hazardous Substance on the Property caused by the other party. This indemnification shall also apply to the migration of any TC Emnt & Asgn ver 3.0 UP TC1654251 City Of McHenry Hazardous Substance to other properties, and the release of any Hazardous Substance into the environment that relate to or arise from the indemnitor's activities on the Property. Grantor agrees to defend, indemnify, protect and hold Grantee harmless from claims resulting from actions on the Property caused by Grantor, and during the Term of, this Agreement. This indemnification shall survive the termination or expiration of this Agreement. 9. NOTICES. All notices, requests, demands and other communications hereunder shall be delivered by Certified Mail Return Receipt Requested, and/or a nationally recognized Overnight courier. Notice shall be deemed accepted upon proof of delivery. Notices shall be delivered: As to Grantor: City of McHenry 333 S Green St McHenry, IL 60050 As to Grantee: c/o Landmark Dividend LLC 2141 Rosecrans Ave., Suite 2100 El Segundo, CA 90245 Attn: Legal Dept. 10. DEFAULT. It shall be an "Event of Default" if either Grantor or Grantee fails to observe or perform any of the terms, conditions or its respective obligations set forth in this Agreement. Upon receiving written notice of such a default or breach of this Agreement, the defaulting party shall have sixty (60) days to cure such default. Notwithstanding anything herein to the contrary, if the required cure of the noticed default cannot reasonably be completed by Grantee within such 60-day period, Grantee's failure to perform shall not constitute an Event of Default so long as Grantee undertakes to cure the failure promptly and diligently and continuously pursues the cure thereof to completion. In the event that the defaulting party fails to cure such default within the cure period, the non -defaulting party shall be entitled to exercise any rights permitted by applicable law. 11. AGREEMENT FULLY PERFORMED. Notwithstanding anything herein to the contrary, this Agreement is deemed to be fully performed by Grantee as of the Commencement Date. In no event shall this Agreement be deemed an executory contract for purposes of the United States Bankruptcy Code, as amended (the "Code"), and this Agreement may not be rejected pursuant to Section 365 of the Code. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF. (b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING TO ENFORCE OR INTERPRET THIS AGREEMENT. (e) EACH PARTY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE CIRCUIT COUT IN McHENRY COUNTY, AND EACH PARTY WAIVES ANY TC Fwnt & Asgn ver 3.0 /JP TC 165425/ City Of McHenry OBJECTION WHICH IT MAY HAVE TO VENUE IN SUCH COURT, WHETHER ON THE BASIS OF INCONVENIENT FORUM OR OTHERWISE. fsiknatures foflow on next pagel TC Esmt & Asgn vor 3.0 /JP TC1654251 City OfMcHenry IN WITNESS WHEREOF, the -undersigned, intending to be legally bound, have caused this Agreement to be duly executed as of the date first written above. 3"Mw "W" CITY OF McHENRY, a municipal corporation By., Ant/ Name. Susan Low Its: Mayor Date: 10 17 et 0 1 STATE OF,::,�1111/11 0 L6 L--) )ss. COUNTY OF -Al P 9 4 S41, On 6144A4,- 17 , 2016, before me, hil A J?-C I A M � UIZA & U-T V . a NotVy Public in and for said County and State, personally � appeared Lisaq I —F , Loup who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of I il 0 t-9 that the foregoing paragraph is true and correct. WITNESS my hand and official Seal. n 1, Notary Public My Commission Expires: tg/,)d /I "OFFICIAL SEAL" Marcia M, Gera Ll , Notary Putgjr, State 0 Im a a my comm,won mvires 06/24/2018 TC Esmt & Asp ver 3.0 JP TC1654251 City OfMeHanry IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have caused this Agreement to be duly executed as of the date first written above. GRANTEE: LANDMARK INFRASTRUCTURE HOLDING COMPANY LLC, a Delaware h 'ability company By: Name: QArAAa_ tt-ss Title: A.uthori ed Signatory Date: 1% Lik WL_ A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Los Angeles On 6 C419�6W (I , 2016, before one, jenvilfer poallot-jones a Notary Public, personally appeared . Daniel R. Parsons , who proved to me on the basis of satisfactory evidence to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hiAer/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PER under the laws of the State of California that the foregoing paragraph is true and correct. JEHNIFER POULIOT-JONES Notary Public - California Witness my hand and official seal. Los Angeles County Commission # 21,5758n M; Comm. Expires Jul 20, 2020 Sigaaturq4 "9 (Seal) TC Fsmt & Asp ver 3.0 /JP TC165425/ City Of McHenry WK�p An interest in land, said interest being over a portion of the following described parent parcel: 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 10, 1955 as Document No. 292379 in Book 12 of Plats, Page 23, in McHenry County Illinois. AND BEING the same property conveyed to City of McHenry, a municipal corporation from Martin Cooney by Indenture dated August 11, 1960 and recorded August 29, 1960 in Deed Book 636, Page 484. Tax Parcel No. 09-34-279-002 TC Esmt & Asp vex 3.0 /JP TC165425/ City Of McHenry EQUIPMENT EASEMENT "B„ PART OF LOT 46 IN COONEY HEIGHTS THIRD SUBDIVISION TO MCHENRY, BOOK 12, PAGE 23 AND DOCUMENT NO.292379, BEING PART OF THE SOUTHEAST QUARTER (SEI/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION THIRTY- FOUR (34), TOWNSHIP FORTY -FINE (45) NORTH, RANGE EIGHT (8) EAST OF THE THIRD PRINCIPAL MERIDIAN IN THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS CONTAINING 20 SQUARE FEET (0.0005 ACRES) OF LAND AND BEING DESCRIBED BY: COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 46 OF SAID COONEY HEIGHTS THIRD SUBDIVISION TO MCHENRY, BOOK 12, PAGE 23 AND DOCUMENT NO.292379; THENCE S460-13'-18"W 26.79 FEET ALONG THE WESTERLY LINE OF SAID LOT 46; THENCE S430-46'-42"E 79:65 FEET; THENCE S90-43'-40"E 21.66 FEET TO THE POINT OF BEGINNING; THENCE S46" 41'-10"E 3.20 FEET; THENCE S43°-18'-50"W 6.31 FEET; THENCE N460-41'-10"W 3.20 FEET; THENCE N43 °-18'-5 0"E 6.31 FEET TO THE POINT OF BEGINNING. EQUIPMENT EASEMENT "C" PART OF LOT 46 IN COONEY HEIGHTS THIRD SUBDIVISION TO MCHENRY, BOOK 12, PAGE 23 AND DOCUMENT NO.292379, BEING PART OF THE SOUTHEAST QUARTER. (SEI/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION THIRTY- FOUR. (34), TOWNSHIP FORTY-FIVE (45) NORTH, RANGE EIGHT (8) EAST OF THE THIRD PRINCIPAL MERIDIAN IN THE CITY OF MCHENRY, MCHENRY COUNTY, ILLIN01S CONTAINING 40 SQUARE FEET (0.001 ACRES) OF LAND AND BEING DESCRIBED BY: COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 46 OF SAID COONEY HEIGHTS THIRD SUBDIVISION TO MCHENRY, BOOK 12, PAGE 23 AND DOCUMENT NO.292379; THENCE S460-13'-18"W 26.79 FEET ALONG THE WESTERLY LINE OF SAID LOT 46; THENCE S43°-46'-42"E 79.65 FEET; THENCE S340-40'-53"W 30.15 FEET TO THE POINT OF BEGINNING; THENCE S730-59'-45"E 10.00 FEET; THENCE S161-00'- 1511W 4.00 FEET; THENCE N731-59'-45"W 10.00 FEET; THENCE N16°-00'-15"E 4.00 FEET TO THE POINT OF BEGINNING. EQUIPMENT EASEMENT "D" PART OF LOT 46 IN COONEY HEIGHTS THIRD SUBDIVISION TO MCHENRY, BOOK 12, PAGE 23 AND DOCUMENT NO.292379, BEING PART OF THE SOUTHEAST QUARTER (SEI/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION THIRTY- FOUR (34), TOWNSHIP FORTY-FIVE (45) NORTH, RANGE EIGHT (8) EAST OF THE THIRD PRINCIPAL MERIDIAN IN THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS CONTAINING 335 SQUARE FEET (0.008 ACRES) OF LAND AND BEING DESCRIBED BY: TC Fsmt & Asgn ver 3.0 !dP TC165425J City Of McHenry COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 46 OF SAID COONEY HEIGHTS THIRD SUBDIVISION TO MCHENRY, BOOK 12, PAGE 23 AND DOCUMENT NO. 292379; THENCE S460-13'-18"W 26.79 FEET ALONG THE WESTERLY LINE OF SAID LOT 46; THENCE S43'-46'-42"E 79.65 FEET; THENCE S660-37'-09"W 28.61 FEET TO THE POINT OF BEGINNING; THENCE S42Q-35'-07"W 6.00 FEET; THENCE S47'-24'- 53"E 10.00 FEET; THENCE S420-35'-07"W 4.00 FEET; THENCE N471-24'-53"W 39.50 FEET; THENCE N42'-35'-07"E 10.00 FEET; THENCE S471-241-53 "E 29.50 FEET TO THE POINT OF BEGINNING. TC &-ml & Asp ver 3.0 /JP TC 165425/ City Of McHenry NON-EXCLUSIVE UTILITY EASEMENT and NON-EXCLUSIVE ACCESS EASEMENT SPACE The part of the Property, described in Exhibit A hereto, on which any equipment exists on the Effective Date together with the portion of the Property used by utility providers and leased by Grantor as the lease premises under each Telecom Tenant Lease including but not limited as follows: Utilities and Telecommunications. Grantee is herein granted, consistent with each Telecom Tenant Lease, a non-exclusive casement in, to, under and over the portions of the Property for ingress and egress to the Telecom Easement Area, shaft ways, chase ways, soffits, risers, columns, crawl spaces, rafters, or any other space for placement of cables, wiring, etc., which is necessary to install, operate and maintain the telecommunications equipment and/or personal property, together with the right to use such easement for the development, repair, maintenance and removal of utilities and/or cables providing service to the Easement and any related activities and uses. Access. Grantee is herein granted, consistent with each Telecom Tenant Lease, all rights of ingress and egress to and from the Telecom Easement Area, in, to, under, and across the Property and through any buildings thereon, described in Exhibit A hereto, providing access to a publicly dedicated roadway, including but not limited to Sioux Lane, along with the right to use such access easement for the development, repair, maintenance and removal of utilities providing service to the Telecom Easement Area and any related activities and uses. TC Esmt & Asgn 4 3.0 /JP TC165425/ City OfMcHenry LFASE DESCRIPTION (TC1 65425 —New Cingular Wireless) That certain unrecorded Lease Agreement dated 08/26/2008, by and between City of McHenry, an Illinois municipal corporation ("Lessor") and New Cingular Wireless PCS LLC, a Delaware limited liability company ("Lessee"), for the property located at 4225 Sioux Lane, McHenry, IL 60050, together with any amendments, modifications or assignments, together with all amendments, modifications and/or assignments. TC Esmt & Asgn ver 3.0 /JF TC1 65425/ City Of McHenry CERTIFICATION I, Marcia M. Geraghty, do hereby certify that I am the duly appointed, acting and qualified Deputy Clerk of the City of McHenry, McHenry County, Illinois, and I do hereby further certify that the attached document is a true and correct copy of Ordinance No. ORD-16- 1807, An Ordinance Authorizing Mayor's Execution of a Gant of Easement and Assignment of Lease Agreement between the City of McHenry and Landmark Dividend LLC for Property Located at 4225 Sioux Lane, passed and approved by the McHenry City Council at its regularly scheduled meeting on September 6, 2016. I do further certify that the original, of which the attached is a true ' and correct copy, is entrusted to me as the Deputy Clerk of said City for safekeeping, and that I am the lawful custodian and keeper of the same. Given under my hand and corporate seal of the City of McHenry this 18th day of October 2016. V A( Marcia M. Geraghty, Deputy ity erk City of McHenry, McHenry County, Illinois (SEAL) The Cite of AleReng is dedicated to providing its citizens, businesses, and visitors with the highest quality of programs and services in a customer -oriented,, efficient-, and fiscally responsible manner.