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RESOLUTION - 36-98 - 7/28/1998 - LEASE AGREEMENT/CELLULAR ONE-CHGO
RESOLUTION NO. 36-98 A RESOLUTION AUTHORIZING THE VILLAGE PRESIDENT AND VILLAGE CLERK TO EXECUTE A LEASE AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VTL .AC:R AND .L•LUTLL R ONE -CHICAGO (1 141 41 AWTHO u . LANE) NOW, THEREFORE, BE IT RESOLVED by the President and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows: Section 1: That the Village President be and is hereby authorized to sign the attached documents marked: LEASE AGREEMENT a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is authorized to attest said documents upon the signature of the Village President. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: 6 NAYS: 0 ABSENT: 0 PASSED this 28th day of July , 1998. APPROVED this 28th day of ATTEST: Patricia S. Smith Village Clerk By: Ann I. Walsh Deputy Village Clerk rescell.doc 1998. Craig B. Johnson Village President 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 LEASE AGREEMENT SITE 465 1: Definitions of Terms Used in this Document: Landlord's Contact Person 1.9 Term Village Manager The Initial Term and any extension term Village of Elk Grove Village or year-to-year term described in 901 Wellington Sections 2 and 3. Elk Grove Village, IL 60007 (847) 439-3900 1.10 Description of Leased Premises Landlord Certain space measuring approximately 850 sq. feet on Landlord's Real Estate, and and certain space Village of Elk Grove Village at the 94 foot level on Landlord's Water Tower 901 Wellington Avenue (the "Tower"), all as described and depicted on Elk Grove Village, IL 60007 Exhibits "A" and "B" attached hereto. Name and Address for Payment of Rent 1.11 Initial Term Village of Elk Grove Village Ten (10) years 901 Wellington Avenue Elk Grove Village, IL 60007 1.12 Initial Rent Atm: Finance Department Commencement Date by four percent (4%) of the Rent d/b/a CellularOne-Chicago, a Delaware $20,800.00 annually ($1,733.33 monthly) Address of Landlord's Real Estate (Subject to renegotiation in accordance with Section 3.3 below) 1141 Hawthorne Lane 3.3 below. Elk Grove Village, Illinois 60007 1.13 Renewal Terms Property Identification Number Four (4) periods of five (5) years each 08-31-405-004-000 Cellular One -Chicago 930 National Parkway 1.14 Rent durine Succeeding Years Tenant Atm: Deborah Shall -Gerber Rent shall be increased on each anniversary of the Southwestern Bell Mobile Systems, Inc. Commencement Date by four percent (4%) of the Rent d/b/a CellularOne-Chicago, a Delaware in effect for the previous year. Rent shall be and Virginia Corporation renegotiated between the parties at the end of the fifth 5th) year of the Term in ( accordance with Section Tenant's Address and Contact Person 3.3 below. Cellular One -Chicago 930 National Parkway 1.15. Landlord's Tank Consultant Schaumburg, IL 60173 Atm: Deborah Shall -Gerber Dixon Engineering (847) 762-2221 9415 W. Forest Home, Suite 208 Hell's Comers, WI 53130 Commencement Date Atm: Joseph Peterson Phone No. (414) 529-1859 July 28, 1998 1 2: Commencement Date; Term and Options to Extend 2.1 Commencement Date. A. The Commencement Date shall be the date upon which Tenant notifies Landlord that Tenant has received the last of the necessary environmental studies and reports and local, state and federal approvals, agreements and permits so as to obtain a permit to commence construction (such approvals, agreements and permits hereinafter collectively called the "Approvals"), provided that Tenant may notify Landlord of its intention to terminate this Agreement before the Commencement Date. B. Beginning on the Commencement Date, Landlord shall lease the Leased Premises to Tenant for the Initial Term on the terms and conditions contained in this Agreement at the Initial Rent as adjusted annually throughout the Initial Term. 2.2 Option to Extend. The term of this Agreement shall be automatically renewable for four (4) additional terms of five (5) years each following the Initial Term at an annual Rent amount to be negotiated by and between the parties pursuant to paragraph 3.3 below upon the same terms and conditions contained in this Lease Agreement. If Tenant desires to not extend any subsequent Term of this Lease, Tenant shall give Landlord written notice of such intention at least sixty (60) days prior to the expiration of the then current Term, whereupon the Lease Agreement shall be deemed canceled upon the expiration of the then current Tetra. 3. Lease Term, Renewal, Security Deposit, Rent Changes 3.1 Lease. Beginning on the Commencement Date, and continuing for so long as this Agreement is in effect, Landlord agrees to lease the Leased Premises to Tenant on the terms and conditions contained in this Agreement for the Rental Amounts described above in Sections 1.12 and as subsequently agreed to by and between the parties. 3.2 Security Deposit. On the Commencement Date, Tenant shall deposit with Landlord the sum of $1,000.00 (the "Security Deposit"). Said Security deposit shall be held by Landlord as security for the faithful performance by Tenant of the terms, covenants and conditions of this Agreement. If Tenant defaults under this Agreement, which default is not cured by Tenant as provided in Paragraph 12. 1, Landlord may use, apply or retain all or a part of this Security Deposit to compensate Landlord for any actual loss, damage or expense incurred or suffered by Landlord by reason of Tenant's uncured default. Prior to Landlord's application of the Security Deposit, it shall first give Tenant written notice, and such notice shall provide to Tenant written documentation of the loss damage or expense for which Landlord seeks compensation from the Security Deposit. Such notice and documentation shall be provided by Landlord to Tenant within thirty (30) days after the date of the occurrence which gives rise to Landlord's claimed loss, damage or expense. Failure to provide such notice and documentation within such time shall result in a waiver by Landlord of the right to apply the Security Deposit. If the Security Deposit is applied by Landlord in accordance with this paragraph, Tenant shall restore the Security Deposit within forty-five (45) days after the notice and demand from Landlord. Landlord shall return the Security Deposit to Tenant or Tenant's assignee within forty- five (45) days after the date of expiration or termination of this Agreement. 3.3 Rent Negotiation. The Rent and the annual incremental increases thereof, shall be subject to renegotiation by the parties on the fifth (5th), tenth (10th) and twentieth (20th) anniversary of the Commencement Date, provided the Lease Agreement has been renewed. In the event the parties are unable to agree upon new terms within thirty (30) days after the fifth (5th), tenth (10th) or twentieth (20th) anniversary of the Commencement Date, then this Lease Agreement shall terminate one hundred twenty (120) days thereafter. In no event shall any new rent be less than the then current rental. 3.4 Additional Consideration. As additional consideration hereunder, Tenant shall give Landlord a one- time credit in the amount of $8,000.00 toward the purchase of wireless telephone equipment sold by Tenant through any Cellular One Wireless Center. Tenant shall issue such credit upon the condition and at the time that Landlord agrees to activate ten (10) or more cellular phones on Tenant's wireless service and enters into a contract therefor. 4. Equipment Shelter(s); Tenant's Equipment 4.1 Equipment Shelter(s): Tenant shall construct two (2) prefabricated equipment shelters (the "Shelters"), which shall be situated on a single concrete foundation measuring approximately 25' 3" by 30'4". The Shelters shall share a common roof and shall be located on a portion of Landlord's real estate as designated by Landlord. Tenant agrees that to the extent possible, the Shelters shall be designed and constructed to be compatible with the design and appearance of other buildings in the area, and in particular, buildings of a similar type constructed by Ameritech and being situated on Landlord's Real Estate. The Shelters shall be constructed in accordance with all code requirements and regulations of governmental authorities having jurisdiction over the same, including, but not limited to, being in compliance with acts affecting construction of public buildings and service areas used by public employees. The construction of the Shelters shall be processed pursuant to any and all applicable permits, shall be conducted by authorized and licensed contractors as designated by Tenant , and shall be performed in compliance with local and state requirements for construction activities upon public land. 4.2 Ownership of the Shelters. The Shelters shall be owned by Tenant for so long as this Agreement is in effect. At such time as this Agreement expires or is otherwise terminated, Tenant shall convey all of its ownership rights in and to the Shelters to Landlord or Landlord's designee. 4.3 Maintenance of Shelters. Tenant agrees that throughout the Term and any Extended Term(s), Tenant will maintain and keep the Shelter in good condition and repair. Within thirty (30) days following the expiration or earlier termination of this Agreement, Tenant will remove all of its Equipment from the Shelter, and will restore the same to substantially the same condition as existed prior to Tenant's installation of its Equipment, normal wear and tear and losses or casualty beyond Tenant's control excepted. 4.4 A. Tenant's Equipment. Tenant shall have the right to install and attach to the Tower and in the portion of the Shelter comprising the Leased Premises the following equipment and/or any other equipment as Tenant deems necessary or desirable for its purposes under this Agreement (hereinafter collectively called "Tenant's Equipment"). All of Tenant's Equipment shall be installed by Tenant at Tenant's sole cost and expense: (i) nine (9) or more cellular transmit/receive antennas and other receiving equipment at approximately ninety-four feet (94') above ground level fed by a transmission line or lines; (ii) flexible heliax-type transmission lines attached to the Tower by transmission line brackets with stainless steel clamping devices; and (iii) such mounting devices (including, if required, a "Painter's Ring") connectors, brackets and other hardware as are necessary to install and attach the foregoing items. B. Tenant shall have the right from time to time to substitute equipment of similar kind and character for those hereinabove specified. Tenant may from time to time replace any of the listed items with new or different items with the same or different specifications so long as their installation is otherwise in compliance with this Lease Agreement and applicable laws, ordinances and codes. C. All of Tenant's Equipment, including cable connections and antennas that are mounted on or lead to the Tower shall be mounted and/or installed in a safe and secure manner. Tenant shall be solely responsible for the safe and secure installation and maintenance of Tenant's Equipment whether such Equipment is mounted on or leads to the Tower. In addition, any of Tenant's Equipment that is installed upon the exterior of the Tower shall be painted to match, as closely as possible, the color of the Tower. Upon twenty (20) days' advance written notice from Landlord, Tenant shall cooperate with Landlord in connection with Landlord's maintenance and repair of the Tower, including, but not limited to, any painting that may be required. In the event Landlord is required to provide special cleaning, painting or other maintenance to the Tower as a direct result of the installation or existence of Tenant's Equipment, Tenant shall reimburse Landlord for its portion of the reasonable costs incurred by Landlord in connection with such special maintenance or painting upon Tenant's receipt of a detailed invoice therefor. Tenant agrees that during any such painting procedure or other type of maintenance conducted by Landlord, Tenant will temporarily remove any one or more of its antennas and replace the same following the completion of Landlord's painting or maintenance work. Landlord agrees to use its best efforts to ensure that such painting or maintenance work is completed in a timely manner. Landlord shall not have the right to remove any of Tenant's antennas or other equipment without first obtaining Tenant's prior written consent; however, in the event of an emergency or a life threatening situation that requires the immediate removal of Tenant's Equipment, Landlord shall be authorized to remove such Equipment provided that Landlord shall give Tenant verbal notice of Landlord's intentions not less than one (1) hour before so acting. 4.5 Landlord's Tank Consultant, Dixon Engineering, shall have the right to examine Tenant's plans and drawings with respect to Tenant's installation of its Equipment on the Tower at no cost or expense to Tenant. Should Dixon Engineering reasonably require that Tenant revise its plans and drawings with respect to the placement of Tenant's Equipment on the Tower, Tenant shall make such revisions to the extent that Tenant's ability to effectively operate its Equipment is not affected, altered or diminished in any way. STANDARD PROVISIONS 5: Methods of Payment. 5.1 First Rent Payment. Not later than fourteen (14) days after the Commencement Date, Tenant shall pay Landlord Rent for the first two (2) full calendar months of the Initial Term. 5.2 Subsequent Monthly Rent Payments. Effective with the fust (1st) day of the third (3rd) calendar month of the Initial Term rent shall be payable monthly in advance on the fust (1st) day of each calendar month. 5.3 Location for Payment. All rent shall be paid to Landlord at the Address for Payment of Rent or to another person, firm or place which the Landlord may from time to time designate in writing at least forty-five (45) days in advance of a rent payment date. 6: Use of Leased Premises. 6.1 Use of Leased Premises. Tenant may use the Leased Premises for lawful telecommunications purposes and related site preparation, improvements and maintenance purposes in accordance with local rules and governmental regulations, and such use shall not interfere with Landlord's use of the Leased Premises (i.e., if Tenant is making improvements to the Leased Premises, Tenant cannot place equipment or materials in such a manner as to block Landlord's access). 6.2 Workmanlike Construction. Tenant agrees that the installation of its antennas and any other construction performed by Tenant will be completed in a neat, workmanlike manner consistent with good engineering practices. All costs of installation and construction, including, but not limited to, the cost of obtaining electrical service to Tenant's equipment, will be paid by Tenant. 6.3 Title to Various Items. Landlord shall, at all times, be the sole and exclusive owner of the Leased Premises. Tenant shall at all times be the sole and exclusive owner of the antenna structure, antennae, equipment enclosures, equipment, other personal property, fixtures, cables and transmission lines and other improvements installed by Tenant on the Leased Premises. 6.4 Ingress and Egress. Tenant and its authorized representatives shall have the right of ingress and egress to and from the Leased Premises from and to the nearest public access twenty-four (24) hours a day, seven (7) days a week. 4 7: Taxes. 7.1 Tenant shall be solely responsible for and shall timely pay all taxes levied and assessed against it or the Leased Premises. Tenant shall not be responsible for any real estate, special assessments or similar taxes relating to the Leased Premises except to the extent permitted by statute for the value of Tenant's leasehold estate. 8: Indemnification. 8.1 Landlord and Tenant hereby agree to indemnify, defend and hold each other harmless from and against any claim of liability or loss from personal injury and property damage in connection with the Leased Premises or resulting from or arising out of the use and occupancy of the Leased Premises by the indemnifying party or its agents, excepting, however, such claims or damages as may be due to or caused by the acts of the indemnified party or its agents. Neither party shall have any obligations under this paragraph unless notified in writing of any such claim or loss within thirty (30) business days of receipt by the other party of notice of such claim or loss. During the term of this Lease, Tenant shall carry and maintain commercial general liability insurance, naming the Landlord as an additional insured entity, insuring against liability for injury to persons or property occurring in or about the Leased Premises or arising out of the ownership, maintenance, use or occupancy thereof. Coverage under such policy shall not be less than $1,000,000.00 per occurrence for personal injuries and not less than $50,000.00 per occurrence for property damage. In addition, Tenant shall carry and maintain worker's compensation insurance in the statutory amount throughout the Term of this Lease. Tenant shall provide Landlord with a certificate of insurance evidencing such coverage on or before the Commencement Date. 9: Landlord's Representations. In order to induce Tenant to enter into this Lease, Landlord covenants, represents and warrants, as of the date of this Lease Agreement and throughout its Term, as follows: 9.1 Authority. Landlord is solvent and the owner of the Leased Premises in fee simple. Landlord has full authority to execute, deliver, and perform this Lease Agreement and is not in default under any mortgage affecting the Leased Premises. 9.2 No Condemnation. Landlord has received no actual or constructive notice of any condemnation or eminent domain proceedings or negotiations for the purchase of the Leased Premises, or any part, instead of condemnation. 9.3 No Unrecorded Liens. Landlord has not performed and has not caused to be performed any work on the Leased Premises during the six months preceding the date of this Lease Agreement which could give rise to any mechanic's or materiahnen's liens. There are no unrecorded easements or agreements affecting the Leased Premises. 10: Easements. 10.1 Granted. For the Term of this Lease, Landlord grants Tenant the Construction, Ingress/Egress and Utility Easements, if any, as described in Exhibits "A" or "B" of this Lease. 10.2 Modifications. If subsequent to the date of this Lease Agreement it is reasonably determined by Tenant that any Access or Utility Easement granted by Landlord no longer adequately serves the Leased Premises and Tenant's use thereof, Landlord agrees to cooperate with Tenant to relocate such Easements where practical. In the event the Landlord is unable to relocate any of the necessary Easements, then at Tenant's option this Lease Agreement may be terminated upon thirty (30) days' prior written notice to Landlord. 11: Assignment. 11.1 Tenant may not assign or otherwise transfer all or any part of its interest in the Agreement or in the Leased Premises without the prior written consent of Landlord; provided, however, that Tenant may assign or sublet its interest without consent to an affiliated entity controlled by Tenant, or its parent corporation or a successor -in - interest of the interests of Tenant. Landlord may assign this Agreement upon written notice to Tenant, subject to the assignee assuming all of Landlord's obligations herein, including but not limited to, those set forth in Paragraph 17.1. 12: Defaults. 12.1 By Tenant. In the event of default under this Lease Agreement by Tenant, Landlord shall be entitled to remedies as shall then be provided by law except that Landlord shall not be entitled to distrain any personal property of Tenant (including fixtures) located on the Leased Premises; and provided that prior to, and as a condition precedent to, the exercise of any remedy, Landlord shall give to Tenant written notice of default to Tenant and the nature of the default and Tenant shall have thirty (30) days (or, if the default cannot be cured within thirty (30) days, a longer period as shall be necessary to cure the default, acting with due diligence) after receipt of the notice within which to cure the default, during which period no remedy shall be pursued. If Tenant fails to cure a default, in addition to any other remedies available to Landlord, the Landlord may elect to commence eviction proceedings provided, however, Tenant shall be permitted a six-month stay from receipt of a notice of eviction at 110% of the then current monthly rent to find an alternative site. 12.2 By Landlord. If Landlord defaults in any of its obligations under this Lease, in addition to any remedies available at law or equity, Tenant may perform Landlord's obligation and may offset from the rent or any other amounts next payable Tenant's costs and expenses of doing so. Notwithstanding anything else in this Lease, Tenant may defer payment of Rent including the first rent payment, during any period in which Landlord is in default in any of its obligations under this Lease; has failed to provide or execute or cause to be provided or executed (a) any document reasonably necessary for Tenant's use of the Leased Premises in the manner contemplated, (b) any Agreement, or (c) any document reasonably necessary to obtain any title insurance or other necessary or desirable insurance or consent. Notwithstanding the foregoing, in the event of a default under this Lease Agreement, Tenant shall give to Landlord written notice of the default specifying the nature of the default and Landlord shall have thirty (30) days (or, if the default cannot be cured within thirty (30) days, a longer period as shall be necessary to cure the default, acting with due diligence), after the receipt of the notice within which to cure the default. If Landlord fails to cure a default, in addition to any other remedies available to Tenant, the Tenant may elect to cancel this Lease Agreement. 13: Condemnation. 13.1 In the event of condemnation, Tenant's share of any condemnation award or proceeds from sale in lieu of condemnation shall be limited to compensation for Tenant's leasehold interest. Tenant shall not receive any part or portion of condemnation award or sales proceeds relating to compensation for property owned by the Landlord. 14: Casualty. 14.1 In the event the Leased Premises is destroyed or damaged in whole or in part by casualty during the term of this Lease Agreement then, at Tenant's option (exercised by notice to Landlord), this Lease Agreement may be terminated as of the date of the event or at any time within ninety (90) days thereafter and no further rent shall be due under the termination section or any other section of this Lease. 15: Quiet Enjoyment. 15.1 Landlord covenants and agrees that upon payment by the Tenant of the Rent due under this Lease Agreement and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Leased Premises and the rights, and privileges granted to Tenant for the Term without hindrance or interference by Landlord or any other person, and Landlord shall perform all of its obligations under this Lease. 16: Subordination, Non -Disturbance and Attornment. 16.1 Existing Encumbrances. Within thirty (30) days after the execution of this Lease, Landlord shall deliver to Tenant executed original(s) of non -disturbance and attomment agreements with Tenant in form satisfactory to Tenant, in Tenant's sole discretion, from any existing mortgage holder or other party holding an interest in the Leased Premises which may take precedence over Tenant's interest in the Leased Premises. Failure by the Landlord to deliver any required non -disturbance and attornment Agreement shall entitle Tenant, at Tenant's option, to terminate this Lease Agreement at any time thereafter and to obtain a refund of all rent and any other amounts paid to Landlord, and, in any case, Tenant shall have no obligation to pay rent or other amounts under this Lease Agreement until Landlord delivers the executed non -disturbance and attomment Agreement. 16.2 Subsequent Financing. Tenant shall enter into recordable subordination, non -disturbance and attomment agreements with the holders of any mortgage, trust deed, installment sale contract or other financing instrument dated after the date of this Lease, if the agreements are in form satisfactory to Tenant. 17: Termination. 17.1 By Tenant. In addition to termination as a result of action or inaction pursuant to other parts of this Lease, Tenant may terminate this Lease: (a) at any time for any reason upon thirty (30) days' written notice to Landlord and payment of six (6) months' rental, or (b) immediately, without payment of any rent not yet due following written notice to Landlord of either (i) Tenant's inability to secure necessary zoning and/or Tenant's loss, denial or failure to satisfy any necessary authorization or radio engineering criteria to use the Leased Premises as contemplated in this Lease, or (ii) Tenant's having obtained a soil test which shows contamination, or building conditions which in Tenant's judgment are unsuitable for Tenant's purposes. 17.2 By Landlord. Landlord may terminate this Agreement following a determination by a qualified engineer (using appropriate instruments which are properly calibrated) that the power density levels emitted from Tenant's equipment located on the Leased Premises exceed the American National Standards Institute's ("ANSI") Safety Levels with Respect to Human Exposure to Radio Frequency Electronic Fields, as set forth in ANSI Standard C95.1-1982 (or any ANSI Standards which supersede this standard), at points accessible to and intended for the general public and the inability of Tenant to bring its equipment into compliance with such standard within sixty (60) days after receipt of a written copy of Landlord's engineering findings. 17.3 Removal of Equipment. Upon the expiration of this Lease, or its earlier termination or cancellation for any reason, Tenant shall at its sole expense remove from the Leased Premises all of its antennas, antenna structures, transmitting and receiving equipment, transmitting lines, underground wiring, fencing, other personal property, fixtures and other improvements. If Tenant has created an access road for its sole use, Tenant shall be required to remove the access road that extends beyond Landlord's access road unless another Tenant of Landlord is utilizing said road, in which case Tenant shall not be required to remove any portion of the access road. Tenant shall have up to ninety (90) days after the effective date of the expiration, termination or cancellation to complete removal of all items. If Tenant requires any of the ninety (90) day period after the effective date for the removal, Tenant shall pay Landlord the then current monthly rent (or in the case of annual rental one -twelfth of the annual rental) in advance for each thirty (30) day period or portion thereof Tenant requires to complete the removal. 18: Cooperation. 18.1 Landlord agrees to cooperate with Tenant in any efforts by Tenant to secure any governmental permits, including zoning permits under the control of Landlord, necessary to use the Leased Premises as contemplated in this Lease, and to join in any application or other document reasonably requested by Tenant within ten (10) days of Tenant's written request. During the term of this Lease Agreement, Landlord shall take no action which would adversely affect the use permitted on the Leased Premises. At any time after the date of this Lease Agreement or the Commencement Date, either party shall execute or cause to be executed any documents, or take or cause to be taken any actions, reasonably necessary to cavy out the intent of this Lease. 19. Environmental Indemnification 19.1 Definition. For purposes of this Lease: (a) Applicable Environmental Laws include the Comprehensive Environmental Response, Compensation, and Liability Act, any so called "Superfund" or "Superlien" law, or any other Federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect. (b) "Hazardous Material" includes any hazardous, toxic or dangerous waste, substance or material as that term is defined in Applicable Environmental Laws. 19.2 No Hazardous Material. Neither the Landlord nor, to the best knowledge of Landlord, any other person, has ever caused or permitted any Hazardous Material to be placed, held, located or disposed of on, under or at the Leased Premises or any part thereof nor has any part thereof ever been used by Landlord, or to the best knowledge of the Landlord, by any other person, either as a permanent or temporary dump site or storage site for any Hazardous Material. 19.3 Tenant's Indemnity. Tenant indemnifies the Landlord and agrees to hold the Landlord harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever paid, incurred or suffered by or asserted against Landlord for with respect to, or as a direct or indirect result of, the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, discharging or release from the Leased Premises or into or upon any land, the atmosphere, or any watercourse, body of water or wetland, of any Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under Applicable Environmental Laws) caused by or in the control of Tenant. 19.4 Landlord's Indemnity. Landlord indemnifies the Tenant and agrees to hold the Tenant harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever paid, incurred or suffered by or asserted against Tenant for, with respect to, or as a direct or indirect result of, the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, discharging or release from the Leased Premises or into or upon any land, the atmosphere, or any watercourse, body of water or wetland, of any Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under Applicable Environmental Laws), caused by or in the control of Landlord, or exisiting upon the Leased Premises prior to the Commencement Date. 19.5 Survival. The provisions of and undertakings and indemnifications set out in this Section shall survive the termination of this Lease. 20: Lease Agreement Construction. 20.1 This Lease Agreement shall be construed in accordance with the laws of the State of where the Leased Premises is located. In the event that any provisions of this Lease Agreement are legally unenforceable, the other provisions shall remain in effect. 21: Entire Binding Understanding; No Oral Modification. 21. All prior understandings and agreements between the parties are merged into this Lease, and this Lease Agreement may not be modified orally or in any manner other than by an Agreement in writing signed by both parties. Presentation of this Lease Agreement by Tenant to Landlord shall not constitute an offer unless the Lease Agreement has been signed by Tenant, and this Lease Agreement shall not be binding until executed by both Landlord and Tenant. 22: Successors; Separability. 22.2 Subject to the provisions regarding assignment, this Lease Agreement shall be binding upon, and inure to the benefit of, the successors -in -interest and permitted assigns or subtenants of the parties and any grantee of Landlord. 23: Notices. 23.1 All notices, requests and other writings required under this Lease Agreement (including any notices of renewal, or termination rights) must be in writing and shall be deemed validly given upon the earlier of (i) actual receipt or (ii) the second business day after the date posted if sent by certified mail, return receipt requested, addressed to the other party with copies as set out in the Landlord's address and Tenant's address (or any other address within the United States that the party to be notified may have designated to the sender by like notice). 24: Landlord's Documentation. 24.1 Landlord agrees to furnish Tenant with a certified copy of Landlord's Resolutions authorizing execution of this Lease Agreement . 25: Broadcast Interference. 25.1 Definition. As used in this Lease, "interference" with a broadcasting activity means: (A) Interference within the meaning of the provisions of the recommended practices of the Electronics Industries Association (EIA) and the rules and regulations of the Federal Communications Commission (FCC) then in effect, or (B) A material impairment of the quality of either sound or picture signals on a broadcasting activity as may be defined by the FCC at any hour during the period of operation of activity, as compared with that which would be obtained if no other broadcaster were broadcasting from the Leased Premises or had any equipment on the Leased Premises. 25.2 Interference. (A) Tenant shall operate its equipment upon the Leased Premises in a manner that will not cause physical, mechanical, radio frequency or signal interference to Landlord and/or other Tenants of Landlord, provided that Landlord's and such other Tenants' installations predates the execution of this Lease Agreement . All operations by Tenant shall be in compliance with all Federal Communication Commission ("FCC") requirements. (B) Subsequent to the installation of Tenant's equipment upon the Leased Premises, Landlord shall not permit itself or its other Tenants to install new equipment on the Tower or elsewhere on Landlord's Real Estate if such equipment is likely to cause physical, mechanical, radio frequency or signal interference with Tenant's operations. Such interference shall be deemed a material breach by Landlord. In the event interference occurs, Landlord agrees to take all reasonable steps necessary to eliminate such interference in a reasonable time period. Landlord shall have the right to install equipment that is in compliance with all FCC standards and regulations. (C) Should Landlord or citizens thereof claim interference with their existing residential uses due to Tenant's equipment, Tenant shall, at its sole cost and expense, cooperate with Landlord to determine if Tenant's equipment is the source of such claimed interference. Such cooperation shall include but not be limited to intermodulation studies. Should it be determined by such studies that such interference is directly attributable solely to the operations of Tenant's equipment on the Leased Premises, Tenant, at its sole cost and expense, shall use its best efforts in taking measures to modify its equipment in order to mitigate such interference to Landlord's reasonable satisfaction. AGREED as of the later of the two dates below: Landlord VILLAGE OF ELK GROVE VILLAGE, an Illinois Municipal Corporation By: Craig B. Johnson Name: Craig B. Johnson Title: Village President Date: July 28, 1998 Tenant SOUWLBELL MOBILE SYSTEMS, INC.LAR ONE -Chicago By: Dane F. Ershen, VP Network Operations vi ete Ritcher, VP Finance Date: 10 EXHIBIT A U . _y 1 10 8 THAT PART OF OUnOT 'r N THE FINAL MT OF SUBDIVISION OF HUNTINGTON CHASE MASE TWO. SENO A SUBDIVISION OF FART OF SECTION T11NTY-ONE, TOWNSHIP FORTY-ONE NORTH. RANGE ELEVEN. EAST OF THE TH OD PRINCIPAL M[ROMN, ACCORDING TO THE MT THEREOF RECODED ON NNE S. 1886 AS DOCUMENT NO. 8628.7870 N THE IIECORDEII'6 OFFICE OF COOK COUNTY. KAMM. BOUNOM AND DESCIO EO AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY CONGER OF SAID OUTOT'F': THPICE SOUTH 7048.47- WEST. BEING AN ASSUMED SEARING ON THE NORTHERLY LINE OF SAN OUTLOT 'r, A DISTANCE OF 20.0 FTs THENCE SOUTH 1r47'42' EAST. PARALLEL WITH THE EASTERLY LINE OF SAID ounOT 'F', SAD EASTERLY LINE AM BEND THE WESTERLY RIGHT. OF -WAY LINE OF INTERSTATE 210 IE76EMIOWER EXPRFSSWAYI. A DISTANCE OF 94.80 FT.; THENCE SOUTH 7C-17- 17' WEST. PERPENDICULAR To THE EASTERLY LINE OF SMD OUnOT W. A DISTANCE OF 12.0 FT. TO THE PONT OF BEGINNING. THENCE NORTH 1r47*J2' WEST. PARALLEL WMT" THE EASTERLY LINE OF SAID OUTLOT 'r. A DISTANCE OF 20.0 FT.; THENCE SOUTH 76'-12'-17' WEST. PER►ENOICINAR WITH THE EASTERLY LINE OF SAID OUTLOT 'r. A DISTANCE OF 17.02 Rs THENCE SOUTH 21•-6P-99' WEST. A DISTANCE OF 6.06 FT.; THE/CE SOUTH Ir4r43' EAST, PARALLEL WITH THE EASTERLY LINE OF SAID OUTLOT 'r. A DISTANCE OF 26.67 FT.: THENCE NORTH 7C.IV-17' EAST. PERPENDICULAR WTN THE EASTERLY LINE OF SAID OUTLOT 'F'. A DISTANCE OF 20.0 FT. TO THE PONT OF BEGINNING, ALL N COOK COUNTY. ILLINOIS. THAT PART OF OUTLOT 'r N THE FINAL RAT OF SU601VISDN OF HNNTNGTON CHASE MASE TWO, 61110 A SU60NISRM OF PART OF SECTION THIRTY-ONE, TOWNSHIP FORTY-ONE NORTH. RANGE ELEVEN. EAST OF THE THIO PRINCIPAL MEIIDIM. ACCOIDNO TO THE RAT THEREOF RECORDED ON NNE 6. 1996 AS DOCUMENT NO. 66282870 N THE RECORDER'S OFFICE OF COOK COUNTY, ILLINOIS, SOUNDED AND DESCRIBE) AS FOLLOWS: COMMENCING AT THE NORTHEASTERLY COWAN OF SAID OUTLOT'F': THENCE SOUTH 70-06'-67' WEST. SENO AN ASSUMED SFANNO ON THE NORTIEIGY LIR OF SAID OUnOT 'r. A DISTANCE Of 20.0 FTs THENCE SOUTH tr47'42' FAST, PARALLEL WITH TILE EASTERLY LINE OF SAID OUTLOT 'F', SAID EASTERLY LINE ALSO BEND THE WESTERLY RIGHT. OF -WAY LNG OF INTERSTATE 299 IEISENOWER EXPRESSWAYS A DISTANCE OF 94.60 FT.: THENCE SOUTH 7C.12'- 17' WEST, PERPENDICULAR TO THE EASTERLY LINE OF MD OUTLOT 'r. A DISTANCE OF 12.0 FT. TO THE PONT OF N KOONG, THENCE NORTH 1r44 7'2' WEST. PARALLEL WITH THE EASTERLY LIME OF SAID OUTLOT 'F'. A DISTANCE OF 50.0 FY.: THENCE NORTH 7C-72'•17' EAST, PERPENDICULAR WITH THE EASTERLY LINE OF L10 OVTOT'F'. A DISTANCE OF 22.0 FT. TO THE EASTERLY UNE OF SAID OUTLOT 'F*: THENCE SOUTH 1r47'42 - WT. ON THE EASTERLY LINE OF SAO OVTLOT 'F'. A DISTANCE OF 20.0 FT.; THENCE SOUTH 7C-12'•17' WEST. PERPENDICULAR WITH THE EASTERLV LINE OF MO OUTLOT 'F'. A DISTANCE OF 22.0 FT. TO THE PONT OF BEGINNING, ALL N COOK COUNTY, ILLINOIS. EASEMENT FOR INGRESS AND EGRESS THAT PART OF OUnOT 'r N THE FINAL MT OF SLSDIVISI00 OF HUNTNGTON CHASE PHASE TWO. BEING A SUSOIVMM OF PART OF SECTION THIRTY-ONIL TOWNSHIP FORTY-ONE NORTH. RANGE ELEVEN. EAST OF THE THRID PRINCIPAL MEIDIAN. ACCORDING TO THE PLAT THEREOF RECORDED ON JUNE S. 1996 AS DOCUMENT NO. 99382170 N THE NECORDER'S OFFICE OF COOK COUNT', ILLINOIS, BOUNDED AND DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHFASTE LY COMM OF SAD OUTLOT 'r. TWICE SOUTH 7C4f'-67' WEST. BEND AN ASSUMED BEARING ON THE NOTTHEIILY LINE OF SAID OUTLOT 'r.'A DISTANCE OF 20.0 FT.; THENCE BORN 1r47'41' EAST. PARALLEL WITH THE EASTERLY LINE OF SAID OUnOT 'P-. BAD EASTERLY LBS ALSO BOD 111E WESTERLY WONT. OF -WAY LIR OF INTERSTATE 290 (SSE HOWO EX"MSWAYL A DISTANCE OF 16.07 FT. TO THE PONT OF Ma OMM THENCE CONTINUING SOUTH 93'47W' FAST. ON SAID PARALLEL LIF• A DISTANCE OF 69.93 FT.: THENCE SOUTH 79••12'.17' WEST. PE PE/OK.YIM TO THE EASTERLY LINE Of SAID OUTLOT 'F'. A DISTANCE Of 12.0 FT.: THENCE NORTH 1r4r42' WEST. PARALLEL WITH THE EASTERLY LINE OF SAD OVTLOT'r. A DISTANCE OF 99.78 R.; THENCE NORTH Or -04'42' WEST, A DISTANCE OF 12.79 FT.: TWICE SOUTH 7C48'•67' WEST, PARALLEL 117TH INS NORTHERLY LIE OF SAID OUTLOT'F'. A DISTANCE OF 101.12 FT.; THENCE NORTH 44'-21'.24' VEST. A DISTANCE OF 28.76 FT. TO THE NORTHWESTERLY LINE OF SAID OUTLOT 'F'. SAID LINE ALSO BEND THE SOUTHEASTERLY MGNT-ORWAY LIE OF HAWTIIOINE LANE; THENCE NORTHEASTTALY 12.04 FT. ON THE ARC OF CURVE CONGAS TO THE NORTHWEST, HAVOC A RADIUS OF 100.0 FT. WITH A CHORD SEARING OF NORTH 411PM'• 58' EAST AND A CHORD DISTANCE OF 12.06 FT.; THENCE SOUTH 44°-26'-24- EAST. A DISTANCE OF 21AS FT.; THENCE NORTH TC48'-93' EAST. PARALLEL WITH THE NORTHERLY LINE OF SAID OUTLOT 'r. A DISTANCE OF 99.19 FT.: THENCE SOUTH SC -04'O2' EAST. A DISTANCE OF 62.76 FT. TO THE PONT OF BEGINNING. ALL N COOK COUNTY. ILLINOIS. 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