Loading...
HomeMy WebLinkAboutRESOLUTION - 15-96 - 2/27/1996 - WATER TOWER LEASE AGRMTRESOLUTION NO. 15-96 A RESOLUTION AUTHORIZING THE VILLAGE PRESIDENT AND VILLAGE CLERK TO EXECUTE A WATER TOWER LEASE AGRffiMENT BETWEEN PCS PRIMECO L.P., A DELAWARE LIMITED PARTNERSHIP AND THE VILLAGE OF ELK GROVE VILLAGE, ILLINOIS (PRATT AVENUE EAST OF TONNE ROAD) 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: 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 27th day of February , 1996. APPROVED this 27th day of February , 1996. Dennis J. Gallitano Village President ATTEST: Patricia S. Smith Village Clerk STANDARD WATER TOWER LEASE AGREEMENT This Standard Water Tower Lease Agreement ("Agreement") is entered into as of this 21st day of February, 1996, between PCS PrimeCo L.P., a Delaware limited partnership ("Lessee"), and the VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal corporation ("Lessor"). For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Premises. Lessor is the owner of a parcel of land ("Land") and a water tower ("Tower") located thereon in the Village of Elk Grove Village, County of Cook, State of Illinois, commonly known as southeast comer of the intersection of Pratt Avenue and Tonne Road (the Tower and Land are collectively, the "Property"). The Land is legally described in Exhibit A annexed hereto. Lessor hereby leases to Lessee and Lessee leases from Lessor. approximately six hundred (600) square feet of the Land and space on the Tower (collectively, the "Premises") and shown in the Site Description as Exhibit B which is annexed hereto. 2. Use. The Premises may be used by Lessee for any activity in connection with the provision of telecommunications transceiving services in accordance with the Special Use Permit and its accompanying site, building and engineering permits. Lessor agrees to cooperate with Lessee, at Lessee's expense, in making application for and obtaining all licenses, permits and any and all other approvals that may be required for Lessee's intended use of the Premises. 3. Tests and Construction. (a) Lessee shall have the right at any time following the full execution of this Agreement to enter upon the Land for the purpose of: making necessary engineering surveys, inspections, soil test borings, other reasonably necessary tests and constructing the Lessee Facilities (as defined in Paragraph 6(a)); provided, however, such tests and construction shall be at Lessee's sole cost and expense and shall be performed without damage to the Tower or interference with Lessor', operation upon the Land. Upon Lessee's request, Lessor agrees to provide promptly to Lessee copies of all plans, specifications, surveys and tower maps for the Land and Tower. The tower map shall include the elevation of all antennas on the Tower. (b) Prior to commencing construction, Lessee shall obtain Lessor's approval of Less'ee's test and construction plans, which approval shall not be unreasonably withheld. Lessor shall give such approval or provide Lessee with its requests for changes within fifteen (15) working days of Lessor's receipt of Lessee's plans. If Lessor does not provide such approval or request for changes within such fifteen (15) working day period, it shall be deemed to have approved the plans. Lessor shall not be entitled to receive any additional consideration in exchange for giving its approval of Lessee's plans. In addition, Lessee shall supply in writing frequency information for each of its antennas, the Effective Radiated Power (ERP) for each antenna, and the safe occupancy area as defined in forthcoming government standards to be furnished to Lessor as published. 4. Term The term of this Agreement shall be five (5) years commencing on the date Lessee begins commercial operation of the Lessee facilities (as defined in Paragraph 6(a)) or April 1, 1996, whichever first occurs ("Commencement Date") and terminating on the fifth anniversary of the Commencement Date ("Term") unless otherwise terminated as provided in Paragraph 10. Lessee shall have the right to extend the Term for three (3) successive five (5) year periods ("Renewal Terms") on the same terms and conditions as set forth herein upon Lessee notifying Lessor of its intention to renew prior to commencement of the succeeding Renewal Term. cGB 717 2121/96 5. Rent. (a) Within 15 business days of the Commencement Date and each anniversary of the Commencement Date, Lessee shall pay to Lessor as rent Fourteen Thousand Four Hundred Dollars ($14,400.00) annually, in advance ("Rent'). Rent for any fractional ,year at the beginning or at the end of the Term or Renewal Term shall be prorated. Rent shall be payable to Lessor at Village of Elk Grove Village, 901 Wellington Avenue, Elk Grove Village, IL 60007; Attention: Finance Department. (b) Rent shall be increased on each anniversary of the Commencement Date by an amount equal to four percent (470) of the Rent for the previous year. (c) On or before the Commencement Date, Lessee shall deposit with Lessor the sum of $1,000.00 (the "Security Deposit"). Said Security Deposit shall be held by Lessor as security for the faithful performance by Lessee of the terms, covenants and conditions of this Agreement. If Lessee defaults under this Agreement, which default is not cured by Lessee as provided in Paragraph 10(b), Lessor may use, apply or retain all or a part of this Security Deposit to compensate Lessor for any actual loss, damage or expense incurred or suffered by Lessor by reason of Lessee's uncured default. ;Prior to Lessor invading the Security Deposit, it shall first give Lessee written notice of its intention to do so and with that notice shall provide to Lessee written documentation of the loss, damage or expense for which Lessor seeks compensation from the Security Deposit. Such notice and documentation shall be provided by Lessor to Lessee within thirty (30) days after the date of the occurrence which gives rise to Lessors claimed loss, damage or expense. Failure to provide such notice and documentation within such time shall result in a waiver by Lessor of the right to invade the Security Deposit. If the Security Deposit is invaded by Lessor in accordance with this paragraph, Lessee shall restore the Security Deposit within forty-five (45) days after the notice and demand from Lessor. Lessor shall return the Security Deposit to Lessee or Lessee's assignee within forty-five (45) days after the date of expiration or termination of this Agreement. (d) The Rent and the annual incremental increases thereof, shall be subject to renegotiation by the parties on the tenth (Io,h) anniversary of the Commencement Date, provided the Lease is so extended. In the event the parties are unable to agree upon new terms within 30 days after the 10ih anniversary, then this lease shall terminate 120 days thereafter. In no event shal I any new rent be less than the then current rental. (e) As additional consideration, Lessee shall provide to Lessor at the time its commences commercial service, a one time credit for $1,000.00 toward the purchase of Lessee's wireless telephone equipment and a one time credit for telephone service in the amount of $7,000.00 based upon the corporate rates then in effect. 6. Facilities; Utilities; Access. (a) Lessee, at its sole cost and expense, has the right to erect, maintain and operate on the Premises radio communication facilities, including utility lines, transmission lines, electronic equipment, radio transmitting and receiving antennas and supporting structures thereto ("Lessee Facilities"). In connection therewith, Lessee shall do all work necessary to prepare, maintain and alter the Premises for Lessee's business operations and to install transmission lines connecting the antennas to the transmitters and receivers. Lessee's construction and installation work shall be performed in a good and workmanlike manner. Title to the Lessee's Facilities shall be held by Lessee. Lessee Facilities shall remain Lessee's personal property and are not fixtures. Lessee has the right to remove all Lessee Facilities at its sole expense on or before the expiration or earlier termination of the Agreement; provided, Lessee repairs any damage to the Premises caused by such removal. Lessee agrees to install a metal cage over the first six (6) feet of its coaxial cable run in order to prevent the scaling of the cables and/or the water tower as well as a protective casing around all of the coaxial cable. In addition, Lessee agrees to paint its equipment to match the existing color of the water tower as well as reimburse Lessor for any cleaning and recoating costs of said Water tank that are incurred due to the CGB 717 2/21/96 installation of Lessee's equipment. Lessor shall provide Lessee with reasonable documentation to evidence that such costs were due to Lessee's equipment installation. In the event these costs were due to more than one tenant, then the costs shall be prorated among the .applicable tenants. Lessee agrees not to make any claim of damages or reimbursement of revenue from Lessor due to any loss of service during the pending cleaning and recoating work undertaken by the Lessor. Lessor agrees to give Lessee reasonable notice prior to the scheduled work dates. Lessee shall have the right to temporarily remove all antennas and electronic equipment and to reinstall the same after completion of the Lessor's work. Lessor shall not move or remove any of the Lessee Facilities without Lessee's prior written consent; provided, however, that in emergency or life threatening situations involving the Lessee Facilities, Lessor may take immediate action to alleviate such emergence or threat to life and give verbal notice within one (1) hour of such action. (b) Lessee shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company. Lessee shall obtain, at its sole cost and expense, separate utility service from any utility company that will provide service to the Property (including a standby power generator for Lessee's exclusive use). Any easement necessary for such power or other utilities will be at a location acceptable to Lessor and the servicing utility company. (c) Lessee, Lessee's employees, agents and subcontractors shall have access to the Premises without notice to Lessor twenty-four (24) hours a day, seven (7) days a week, at no charge. 7. Interference. (a) Lessee shall operate the Lessee Facilities in a manner that will not cause physical, mechanical, radio frequency or signal interference to Lessor and other lessees or licensees of the Property, provided that their installation predate the execution of this Agreement. All operations by Lessee shall be in compliance with all Federal Communication Commission ("FCC") requirements. (b) Subsequent to the installation of the Lessee Facilities, Lessor shall not permit itself, its lessees or licensees to install new equipment on the Property if such equipment is likely to cause physical, mechanical, radio frequency or signal interference with Lessee's operations. Such interference shall be deemed a material breach by Lessor. In the event interference occurs. Lessor agrees to take all reasonable steps necessan to eliminate such interference, in a reasonable time period. Lessor shall have the right to install equipment that is in compliance with all FCC standards and regulations. (c) Should Lessor or citizens thereof claim interference with their existing residential uses due to Lessee Facilities, Lessee shall, at its sole cost and expense, cooperate with Lessor to determine if Lessee Facilities are 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 the Lessee Facilities on the Premises, Lessee, at its sole cost and expense, shall take all reasonable measures to modify the Lessee Facilities in order to mitigate such interference to Lessor's reasonable satisfaction. 8. Taxes. If personal property taxes are assessed, Lessee shall pay any portion of such taxes directly attributable to the Premises. 9. Waiver of Lessor's Lien. Lessor waives any lien rights it may have concerning the Lessee Facilities which are deemed Lessee's personal property and not fixtures, and Lessee has the right to remove the same at any time without Lessor's consent. 10. Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant or term thereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default, provided that the grace CGB 717 3 2/21/96 period for any monetary default is ten (10) days from receipt of notice; or (ii) by Lessee for any reason or for no reason, provided Lessee delivers written notice of early termination to Lessor no later than thirty (30) days prior to the commencement Date; or (iii) by Lessee if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of Lessee Facilities; or (iv) by Lessee if Lessee is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a take back of channels or change in frequencies; or (v) by Lessee if Lessee determines that the Premises are not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference; or (vi) Lessor 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 Lessee's equipment located on the Premises exceed the American National Standards Institute's ("ANSI") "Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic 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 Lessee to bring its equipment into compliance with such standard within sixth (60) days after receipt of a written copy of Lessor's engineering findings. 11. Relocation. (a) Lessor shall have the right to relocate the Lessee Facilities during the Term or any Renewal Term of this Agreement upon not less than twelve (12) months prior written notice to Lessee; provided, however, that the new premises (the "Alternate Premises") shall be similar in area and appropriateness for Lessee's purposes and any such substitution is effected for the purpose of razing the Tower and/or replacing the Tower. Lessee shall pay any and all expenses connected with moving the Lessee Facilities to the Alternate Premises. (b) The size, location and dimensions of the Alternate Premises shall be chosen by Lessor but must, in Lessee's reasonable judgment, be at least as suitable for purposes of operating the Lessee Facilities as the size, location and dimensions of the Property. If the Alternate Premises are not suitable for Lessee's operations, as determined by Lessee in its sole judgment, then Lessor shall not require Lessee to relocate to such Alternate Premises and Lessee shall remain on the Premises until the expiration of the twelve (12) month notice period or, if Lessee is not willing to relocate, Lessee may terminate this Agreement upon thirty (30) days written notice to Lessor and Lessee shall have no further liability hereunder. (c) The relocation of the Lessee Facilities to the Alternate Premises shall not cause the Rent payable under this Agreement to be increased. (d) Upon the relocation of the Lessee Facilities from the Premises to the Alternate Premises, all references in this Agreement to the Premises shall be deemed to be references to the Alternate Premises. Following such relocation, Lessee may, at its expense, prepare plans delineating the Alternate Premises, which shall then replace Exhibit B of this Agreement. 12. Destruction or Condemnation. (a) In the event of condemnation, Lessee's share of any condemnation award or proceeds from sale in lieu of condemnation shall be limited to compensation for Lessee Facilities. Lessee shall not receive any part or portion of condemnation award or sales proceeds relating to compensation for property owned by the Lessor. (b) Lessee, at its sole cost and expense, shall maintain the Premises in accordance with all regulations of the Lessor for the duration of this Agreement. In the event the Premises is destroyed or damaged in whole or in part by casualty during the term of this Agreement, then the responsible party (Lessor or Lessee) that caused such damage through fault or negligence shall at its sole expense repair and restore the Premises. Such repair and restoration shall be performed within sixty (60) days of receipt of written notice of casualty by CGB 717 4 2/21/96 Lessor or Lessee. If such damage is caused by Lessee, the Lessee shall not have the right to terminate the Agreement until such repairs and restoration are performed. (c) Upon expiration or termination hereof, Lessee shall restore the Premises to the condition in which it existed upon execution hereof, reasonable wear and tear and loss by casualty or damage caused by reasons beyond Lessee's control excepted. 13 Insurance. Lessee, at Lessee's sole cost and expense, shall procure and maintain on the Premises and on the Lessee facilities, bodily injury and property, damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000) per occurrence. Such insurance shall insure, on an occurrence basis, against liability of Lessee, its employees and agents arising out of or in connection with Lessee's use of the Premises, all as provided for herein. Lessor shall be named as an additional insured on Lessee's policy. Lessee shall provide to Lessor a certificate of insurance evidencing the coverage required by this paragraph within thirty (30) days of the Commencement Date. 14. Waiver of Subrogation. Lessor and Lessee release each other and their respective principals, employees, representatives and agents, from any claims for damage to any person or to the Premises or to the Lessee Facilities thereon caused by, or that result from, risks insured against under any insurance policies carried by the parties and in force at the time of any such damage. Lessor and Lessee shall cause each insurance policy obtained by them to provide that the insurance company waives all right of recovery by way of subrogation against the other in connection with any damage covered by any policy. Neither Lessor nor Lessee shall be liable to the other for any damage caused by fire or any of the risks insured against under any insurance policy required by Paragraph 13. 15. Assignment and Subletting. Lessee may not assign, or otherwise transfer all or any part of its interest in this Agreement or in the Premises without the prior written consent of Lessor; provided, however, that Lessee may assign its interest without consent to its general partnership or an affiliate entity. Lessor may assign this Agreement upon written notice to Lessee, subject to the assignee assuming all of Lessor's obligations herein, including but not limited to, those set forth in Paragraphs 9 and 10. 16. Warrantv of Title and Quiet Eniovment. Lessor warrants that: (i) Lessor owns the Property in fee simple and has rights of access thereto; (ii) Lessor has full right to make and perform this Agreement; and (iii) Lessor covenants and agrees with Lessee that upon Lessee paying the Rent and observing and performing all the terms, covenants and conditions on Lessee's pact to be observed and performed, Lessee may peaceably and quietly enjoy the Premises. 17. Miscellaneous. (a) This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiation and other agreement concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties. (b) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (c) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. CGB 717 5 2/21/96 (d) Any notice or demand required to be given shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Lessor: Village of Elk Grove Village 901 Wellington Avenue Elk Grove Village, IL 60007 Atm.: Village Manager Lessee: PCS PrimeCo, L.P. One Pierce Place, 11th Floor Itasca, IL 60143 Attn: Director of Site Development With copy to: PCS PrimeCo, L.P. One Pierce Place, lith Floor Itasca, IL 60143 Attm Associated General Counsel Lessor or Lessee from time to time designate any other address for this purpose by written notice to the other party. (e) This Agreement shall be governed by the laws of the State of Illinois. (f) In the event the Property is encumbered by a mortgage or deed of trust, Lessor agrees to assist Lessee in obtaining a non -disturbance and attornment instrument for each such mortgage or deed of trust. (g) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such approval or consent shall not be unreasonably delayed or withheld. (h) All Riders and Exhibits annexed hereto form material parts of this Agreement. original. (i) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an Q) Lessee communications shall be within the 1.8 to 2.1 gigahertz frequency band. 18. Marking and Lighting Requirements. Lessee shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and FCC due to the presence of the Lessee Facilities on the Tower. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. LESSOR: VILLAGE OF ELK GROVE VILLAGE Illinois municipal corporation By: Dennis J. Gallitano Date: February 27, 1996 Title: Village President Tax ID #: 36-6009201 ATTEST: Patricia S. Smith Village Clerk CGB 717 2l2I/96 Ci LESSEE: PCS PRIMECO L.P., a Delaware limited partnership By: Date: Title: Director of Site Development EXHIBIT A DESCRIPTION OF PREMISES to the Agreement by and between VILLAGE OF ELK GROVE VILLAGE, as Lessor, and PCS PRIMECO L.P., as Lessee. The Premises are described and/or depicted as follows: The East 100 feet of the West 521.99 feet of the South 112 feet of the North 245.83 feet of the South 409.77 feet of the North half of the Southwest Quarter of Section 34, Township 41 North, Range 11, East of the Third Principal Meridian, in Cook County, Illinois. That part of the east 14 feet of the West 521.99 feet of the North 1/2 of the Southwest 1/4 section, lying North of the South 275.94 feet of said North Half of the southwest 1/4 section and lying South of the South Line of Pratt Avenue as described in Centex Industrial Park Unit 22 in the West 1/2 of the Southwest 1/4 of Section 34, Township 41 North, Range 11 lying East of the Third Principal Meridian, in Cook County, Illinois. and otherwise known as the southeast comer of the intersection of Pratt Avenue and Tonne Road, Elk Grove Village, Illinois. P.I.N. 08-34-300-027 08-34-300-037 ccs 717 2/21/96 EXHIBIT B SUE PLAN CGB 717 2/21/96