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HomeMy WebLinkAboutRESOLUTION - 94-85 - 11/26/1985 - OPTION & LEASE AGRMT RESOLUTION NO. 94-85 A RESOLUTION AUTHORIZING THE VILLAGE PRESIDENT TO EXECUTE AN OPTION AND LEASE AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND CHICAGO SMSA LIMITED PARTNERSHIP (AMERITECH) 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: Section 1: That the Village President and Board of Trustees hereby authorize the adoption of the attached documents marked: OPTION AND LEASE AGREEMENT (Chicago SMSA Limited Partnership an Illinois limited partnership) a copy of which is attached hereto and made a part hereof as if fully set forth. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. PASSED this 26th day of November 1985. APPROVED this 26th day of November 1985. , Charles J . Zettek Village President ATTEST: Patricia S. Smith Village Clerk r_ 4 Tenant's Site Code: Chi EI, Fl OPTION AND LEASE AGREEMENT This Option and Lease Agreement (the "Agreement"), made as of the date determined according to Section 3.14 below between VILLAGE OF ELK GROVE VILLAGE (the "Landlord") and CHICAGO SMSA LIMITED PARTNERSHIP (the "Tenant"). RECITALS: Landlord owns certain real property located at the common address of 1751 Greenleaf, Elk Grove Village, Illinois, Cook County, State of Illinois with the tax parcel number(s) of 08-35-1,04-060. Tenant wishes to obtain an option to lease (a portion of) such real property, including the Access Easement described in Section 3.13 and any Utility Easement required under Section 3.13, which real property, including the Access Easement and any Utility Easement, are collectively referred to in this Agreement as the "Property", and which Property is substantially shown outlined in red on Exhibit A attached to and made a part of this Agreement, and legally described on Exhibit B attached to and made a part of this Agreement. NOW THEREFORE, for value received and the mutual promises contained in this Agreement, Landlord and Tenant agree as follows: PART I: OPTION. 1.1. Grant of Option. Tenant agrees to pay, within twenty-one days after the date of this Agreement (as determined by Section 3.14) One Thousand Dollars ($1,000.00) (the "initial Option Money"), and in return for Tenant's agreement to pay the Initial Option Money the Landlord hereby grants to Tenant an exclusive and irrevocable option to lease the Property for the period beginning the date of this Agreement and ending on January 1, 1986, (the "Initial Option Period") in accordance with the terms and conditions set forth below. By written notice to the Landlord and payment of One Thousand Dollars ($1,000.00) (the "Second Option Money") before the Initial Option Period expires, Tenant may extend the option for an additional period (the "Second Option Period") beginning the day after the last day of the Initial Option Period and ending on April 1, 1986. By written notice to the Landlord and payment of One Thousand Dollars ($1,000.00) (the "Third Option Money") before the Second Option Period expires, Tenant may extend the option for an additional period (the "Third Option Period") beginning the day after the last day of the Second Option Period and ending on July 1, 1986. The Initial Option ?Money, Second Option Money, the Third Option Money, and any other amounts paid by Tenant in connection with the option, is hereafter referred to as the "Option Money". The time during which the option may be exercised may be further extended by written agreement between Landlord and Tenant. In the event that (i) any written notice and/or any Option Money is not delivered by the due date, then the option shall terminate, but if Landlord accepts any payment of Option Money and/or written notice of exercise after the applicable due date, Tenant's default shall be deemed waived and the option shall be reinstated effective the date the applicable Option Period would have otherwise began. 1.2. Memorandum of Option. At the same time as each party signs this Agreement they shall sign the Memorandum of Option and Lease (the "Option Memorandum") attached to this Agreement as Exhibit C. Tenant may record the Option Memorandum in the real estate records of the County where the Property is located. 1.3. Access. Landlord shall permit Tenant and its agents and contractors, during the term of the option, as it may be extended, access to the Property to: (a) conduct at Tenant's expense (except as provided in Section 1.5) such surveys, structural strength analysis, soil tests, and other tests and investigations as Tenant may deem necessary; and (b) during all or any part of the months of November through March, inclusive, at Tenant's expense, cover the ground surface area of the Property with as much straw or other insulating material as Tenant deems necessary to prevent the ground from freezing, in order to facilitate possible future construction on the Property in the event Tenant exercises the option. Tenant will repair and restore back to original condition any damage to the Property caused by its activities, and, if Tenant terminates this Agreement before exercise of the option, Tenant will upon request remove the straw or other insulating material. 1.4. Title Insurance. (a) Landlord shall furnish to Tenant upon or before execution and delivery of this Agreement by Landlord copies of any title policies or other title evidence covering the Property which Landlord may have. Tenant shall order a title commitment (to be followed by a title policy dated the date of Tenant's exercise of the Option) for an ALTA leasehold title insurance policy issued by the Chicago Title Insurance Company (the "Title Insurer") insuring Tenant's leasehold interest in the Property (including any easements granted pursuant to Section 3.13) in the amount of either (x) the sum of the rental payments required hereunder for five years plus $10,000.00 or (y) $35,000, whichever amount is greater, with extended coverage over the printed general exceptions and an endorsement insuring access to a public road by means of the Access Easement forming a part of the Property. The title commitment and policy shall be subject only to any mortgages or other encumbrances on the Property as to which the holder of such mortgages or other encumbrances has entered a recordable non-disturbance agreement with Tenant in form satisfactory to Tenant, or mortgages shown in the commitment and policy as subordinate to this Agreement, and also such other exceptions as Tenant may approve in writing (all of which are herein referred to as the "Permitted Exceptions"). The title commitment shall be conclusive evidence of good title as shown in the commitment as to all matters insured by the policy, subject only to the exceptions stated in the commitment. Tenant shall pay the cost of such title commitment and policy. (b) If the title commitment or any survey obtained by Tenant discloses unpermitted exceptions (including survey matters that render the title unmarketable) Landlord shall have 21 days from the date (the "Notification Date") of Tenant's notification to Landlord of such exceptions to have the exceptions removed from the commitment or to correct such survey defects or to have the title insurer commit to insure against loss or damage that may be occasioned by such exceptions, and, in such event, the time of exercise of the option shall be (i) 25 days after the Notification Date or (ii) the date of the notice of actual exercise of the option pursuant to Section 1.7 below or the date the escrow is opened pursuant to Section 1.6 below (whichever applies), whichever of (i) or (ii) is later. Tenant shall have the right (but no duty) to cure any such title exceptions on behalf of Landlord. If Landlord fails to have the exceptions removed, or in the alternative, to obtain the commitment for title insurance specified above as to such exceptions within the specified time, Tenant may terminate this Agreement or may elect upon notice to Landlord within ten (10) business days after the expiration of the 21-day period following the Notification Date, to lease the Property as it then is. If Tenant does not so elect, this Agreement shall become null and void without further actions of the parties, and Landlord shall refund to Tenant all Option Money paid. 1.5. Survey. Landlord will furnish Tenant with copies of any existing surveys of the Property Landlord may have in its possession. In addition, it is contemplated that Tenant at its own expense will obtain a current survey of the Property. If no adequate legal description is available as of the date of this Agreement or if the legal description of the Property (including any easements required pursuant to Section 3.13) in any subsequent survey obtained by Tenant differs from Exhibit B and/or Rider A to Exhibit C, Tenant may use or substitute its legal description for Exhibit B and/or Rider A to Exhibit C, and the new legal description shall be controlling. In addition, when Tenant's survey of the Property -2- r (including any easements required pursuant to Section 3.13) is completed Tenant may substitute it for Exhibit A, and Tenant's survey shall be controlling. 1.6. Escrow. At the election of Tenant, upon not less than five days notice to Landlord, the option may be exercised through an escrow with Chicago Title and Trust Company, in accordance with the general provisions of the usual form of Escrow Agreement then in use by Chicago Title and Trust Company, with such special provisions inserted in the escrow agreement as may be required to conform it with this Agreement. The escrow will be opened within five (5) days of Landlord's receipt of Tenant's notice of intent to exercise given pursuant to Section 1.7 below, and the escrow must close (by disbursement) not more than twenty-one (21) days after it is opened, subject to extension by operation of Section 1.4(b) above. Upon the creation of such an escrow, despite anything herein to the contrary, issuance of the title policy, payment of the first installment of rent as set forth in Section 2.1, and delivery of an executed, recordable memorandum (the "Lease Memorandum") of the lease substantially in the form of the Option Memorandum (but containing affirmative granting language, showing that the option to lease has been exercised, and the date of exercise and commencement of the Lease) shall be made through the escrow, and a copy of this Agreement shall be deposited in the escrow. The cost of the escrow shall be paid by Tenant. 1.7. Exercise; Failure to Exercise or Renew. This option may be exercised by Tenant giving Landlord written notice of actual exercise or notice of intent to exercise through an escrow pursuant to Section 1.6 above on or before the last day of the Initial Option Period, or, if applicable, the Additional Option Period, or any further extensions of the option. Except as set forth in Section 1.1, if Tenant fails to give either notice of actual exercise or to give notice of intent to exercise through an escrow or to renew the option before the end of the current option period, then this Agreement will be terminated. Upon such termination Landlord may keep all Option Money received by Landlord, and no additional money shall be payable by either party to the other. 1.8. Lease. Upon Tenant's notice of actual exercise of the option or, if Tenant exercises through an escrow, on the date the escrow disburses, the Lease Agreement (the "Lease") which follows shall take effect. PART II: LEASE AGREEMENT. 2.1. Initial Term. Landlord hereby leases the Property to Tenant for an initial term of five (5) years, beginning on the date the option is exercised by Tenant (or if the option is exercised in escrow pursuant to Section 1.6, then beginning on the date the escrow is opened, if the transaction then closes by disbursement of the escrow or otherwise), at an annual rental of Four Thousand Eight Hundred Dollars ($4,800.00) to be paid in equal monthly installments on the first day of each month, in advance, to Landlord at the address set forth in Section 3.7 below, or to such other person, firm or place as the Landlord may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. Notwithstanding anything herein to the contrary, if the option is exercised in escrow, then rent shall not begin to accrue until the day the escrow disburses. If the Tenant does not exercise the option through an escrow and if the Lease begins on a day other than the first day of a calendar month, Tenant will pay on the first day of the next subsequent calendar month, in addition to one month's rental as above, a pro rata portion of the monthly rental for the period of the Lease preceding the first full calendar month of the Lease. If the Tenant exercises the option through an escrow, then one month's rental and pro rata rental for the month in which the escrow closes, if the closing is on other than the first day of a calendar month, shall be deposited into and upon disbursement paid through the escrow. 2.2. Option to Extend. Tenant shall have the option to extend this Lease for four (4) additional five (5) year terms by giving the Landlord written notice of its intention to do so at least thirty (30) days prior to the end of the then-current term. -3- 2.3. Rental During Extension Terms. The annual rental for the first (1st) five (5) year extension term shall be increased to Five Thousand Two Hundred Eighty Dollars ($5,280.00); for the second (2nd) five (5) year extension term shall be increased to Five Thousand Eight Hundred Twenty Dollars ($5,820.00); for the third (3rd) five (5) year extension term shall be increased to Six Thousand Twenty Dollars ($6,020.00); and for the fourth (4th) five (5) year extension term shall be increased to Seven Thousand Twenty Dollars ($7,020.00). 2.4. Year to Year Terms. Tenant shall give Landlord notice at least six (6) months prior to the end of the fourth (4th) five (5) year extension term and each one year term thereafter pursuant to Section 2.4(i) of either (i) the extension of this Lease upon the same terms and conditions for a further term of one (1) year or (ii) the termination of the Lease at the end of the then current Lease term, provided, however, that in the event that Tenant gives notice of its intent to extend the Lease as provided in Section 2.4(i), Landlord may elect to terminate this Lease at the end of the then current Lease term by giving Tenant notice of such termination at least two months prior to the end of the then current Lease Term. Monthly rental for these annual periods shall be equal to the rent paid for the last month of the fourth (4th) five (5) year extension. 2.5. Use of Property. Tenant may use the property for any lawful purpose consistent with applicable Village codes and ordinances. Tenant may remove any improvements (existing on the date hereof) and trees and growth on the Property subject to Landlord's consent. All improvements (including fixtures) added to the Property shall be at Tenant's expense and shall be Tenant's property. Tenant presently intends to use the property as a cellular mobile telephone transmitting and receiving site, which may consist of an equipment enclosure building, and an antenna structure. Landlord agrees that it will grant any temporary easements over any surrounding property owned by Landlord. Tenant agrees it will repair any damage to any surrounding property caused by its activities. 2.6. Removal of Tenant's Property at End of Lease. Tenant, upon termi- nation of this Lease, shall within ninety days after the termination of this Lease, remove all of its improvements, personal property, and fixtures, and shall restore the Property substantially to its original condition, reasonable wear and tear excepted, provided Tenant will not be required to remove any underground piping or wiring or any other fixtures or improvements below ground level. At Landlord's request made before the termination date of the Lease and before Tenant com- mences removing the same, Tenant will leave any security fence built by Tenant to become the property of Landlord, but Tenant shall in any case remove any building, all of its equipment, and any antenna installed at the Property. 2.7. Indemnification. Tenant shall indemnify and hold Landlord harmless against any claim of liability or loss from personal injury or property damage resulting from or arising out of the use and occupancy of the Property by the Tenant, or its agents, excepting, however, such claims or damages as may be due to or caused by the acts of the Landlord, or its agents. Tenant shall have no obligation under this Section unless Landlord has notified Tenant of any such claim or loss within sixty (60) business days of Landlord's receipt of such claim or loss. 2.8. Deliberately Deleted. 2.9. Taxes and Assessments. Except as set forth below, Tenant shall pay all real estate taxes accruing against all of the Property, excluding any Utility Easement or non-exclusive Access Easement for the period of the Lease. The Property excluding any utility easement or non-exclusive Access Easement shall be called the "Tax Parcel" in this Section 2.9. Such taxes will be prorated on a daily basis beginning with the date this Lease commences and ending with the date this Lease ends. If the tax bill for the final year (or years) of the term of this Lease is not available when this Lease ends, Tenant shall pay to Landlord with the final installment of rent an estimate of the ratable portion of unpaid taxes which -4- rr' have accrued against the Tax Parcel as of the date this Lease ends. Such estimate shall be based on the most recent available tax bill and shall be final, with no adjustment when actual tax bills for such period are available. Tenant also agrees to pay all assessments against the Tax Parcel due and payable during the term of this Lease for improvements that benefit Tenant's use of the Tax Parcel; if any such assessment bill is payable either in a lump sum or installments, Tenant may elect the method of payment and shall pay only the installments which are due during the term of this Lease, and any bill or installment payable in the first or final year of this Lease shall be prorated. Both parties agree to use best efforts to obtain separate tax and assessment bills (the cost of which shall be at Tenant's expense) for the Tax Parcel if it is taxed or assessed with other property. If separate bills are not obtainable, then real estate taxes and assessments shall be fairly apportioned to the Tax Parcel, and Tenant shall be furnished by Landlord with a copy of the tax bill and Landlord's proposal for apportionment at least thirty (30) days before such bill is due. Any increase in real estate taxes or assessments which is directly attributable to improvements to or a change in use of the Tax Parcel by Tenant or to improvements to or a change in use of surrounding property by Landlord will be paid by the party making such improvements or change. Tenant reserves the right to pay all taxes and assessments directly and in such event at Tenant's option Landlord shall reimburse Tenant for Landlord's share of such items or Tenant may offset the amount paid by Tenant for Landlord's share against rent or any other sums owing Landlord by Tenant under this Agreement provided, however, that this sentence shall not be of force or effect so long as the fee owner of the Premises is a tax exempt entity. Tenant shall have the right to contest all taxes, assessments, charges, and impositions, and Landlord agrees to join in such contest, if required by law, and to permit the Tenant to proceed with the contest in Landlord's name, provided that the expense of the contest is borne by Tenant. If the Landlord initiates an action to eontest taxes or other items the Tenant may join in such action provided that Tenant pays its own expenses of so participating. Landlord shall within twenty (20) days of receipt of notice of any increase in taxes, assessments or other charges send a copy of such notice by certified mail, return receipt requested, to Tenant. If Landlord fails to give Tenant such notice as set forth above, Landlord will be responsible for payment of any penalties occasioned by the failure to give such notice and Tenant shall have the option to pay the same and deduct such payment from rent or any other sums next due. Tenant reserves the right and Landlord hereby authorizes Tenant to obtain a copy of any tax or assessment bill from the appropriate governmental offices. Upon request, Landlord will execute or join in any application necessary to have originals or copies of tax and assessment bills sent to Tenant. 2.10. Payment of Utilities. Tenant shall pay all utilities used by Tenant in connection with the Property. 2.11. Estoppel Certificates. At all times, either party shall, upon twenty (20) days prior written request by the other, deliver to the requesting party a statement in writing certifying that this Lease is unmodified and in full force and effect (or if modified, in effect as modified and setting forth the modifications and the dates thereof), the dates to which rent and other charges have been paid, and stating whether or not, to the knowledge of the party requesting such certificate, the requesting party is in default in performance of any agreement contained in this Lease and, if so, specifying each such default and whether there are any counterclaims. 2.12. Defaults. In the event of default under this Lease by Tenant, Landlord shall be entitled to such remedies as shall then be provided by law except that Landlord shall not be entitled to distrain any personal property (including fixtures) on the Property. In the event of default by Tenant, prior to, and as a condition precedent to, the exercise of any remedy, Landlord shall give written notice of such default and the nature thereof and Tenant shall have thirty (30) days (or, if such default cannot be cured within thirty (30) days, such longer period as shall be necessary to cure such default, acting with due diligence), after such -5- r� r notice within which to cure such default, during which period no remedy shall be pursued. This shall not limit other remedies available to Tenant under this Agreement or applicable law, including (but not limited to) the right to recover or offset any consequential damages caused by Landlord's default. 2.13. Right of Early Termination. Tenant may terminate this Lease at any time upon thirty (30) days notice and the payment to Landlord of a sum equal to six (6) month's rent at the then-current rental. 2.14. Quiet Enjoyment. Landlord covenants that Tenant, on paying the rent and performing the Lease, shall have peaceable and quiet enjoyment of the Property. 2.15. Lease Memorandum. If this transaction is not closed in escrow pursuant to Section 1.6, Landlord agrees to deliver to Tenant an executed original of the Lease Memorandum within ten (10) days of Tenant's exercise of the option, and Tenant may record the Lease Memorandum in the real estate records of the county where the Property is located. 2.16. Fence. Tenant acknowledges that Landlord's fence encroaches on the Property and that this encroachment is permitted. Tenant agrees to maintain that portion of the fence that encroaches on the Property. PART III: GENERAL TERMS AND CONDITIONS. The following terms and conditions shall apply to and be deemed a part of both the Option and Lease Agreement. 3.1. Cooperation. It is understood that Tenant must obtain various certificates, permits and other approvals (collectively the "Governmental Approvals") from federal, state and local authorities, including but not limited to zoning, FCC approvals, FAA approvals, if necessary, and building permits, in order to carry out Tenant's intended use of the Property. Landlord agrees to cooperate with Tenant throughout the term of this Agreement in Tenant's efforts to obtain and maintain such Governmental Approvals and to execute or cause to be executed such documents or instruments as Tenant shall request as may be required in connection with such Governmental Approvals. During the term of this Agreement Landlord shall take no action which affects the uses permitted on the Property. Landlord agrees not to allow the construction of any other tower or structure on the property, commonly known as 1751 Greenleaf, Elk Grove Village, Illinois, that would interfere with the radio signals coming to or going from Tenant's facility. Tenant shall have the right to review and approve any such project prior to approval thereof by Landlord, which approval by Tenant will not be unreasonably withheld. 3.2. Condemnation; Interruption to Possession; Right to Terminate. In the event that (i) the federal, state or local government or any other public body (all of the foregoing being hereinafter referred to collectively as "Governmental Agency") shall take all or so much of the Property as shall make it physically or financially unfeasible in Tenant's judgment for the Property to be used in the manner or for the purposes for which the Property were used or intended by Tenant to be used immediately prior to such taking, (ii) any such Governmental Agency shall prohibit, restrict, temporarily or permanently discontinue or substantially impair Tenant's operations being conducted on the Property for any reason, (iii) the actions of any such Governmental Agency shall obstruct vehicular or pedestrian access to the Property (the foregoing items (i), (ii) and (iii) being collectively referred to as a "Taking"), (iv) any claim of paramount title shall result in denial to the Tenant of possession or use of the Property, or (v) Tenant is unable to use and operate the Property as a cellular mobile telephone transmitting and receiving site as a result of the denial or termination or cancellation of any Governmental Approvals, then, in any such event, Tenant shall have the option of -6- terminating this Agreement upon thirty (30) days prior written notice to Landlord, in which event Tenant shall be liable for rental and other payments only until the date on which the Property is vacated. Tenant shall be entitled to any portion of any award rendered in connection with the Taking allocable to Tenant's leasehold interest and Tenant's improvements to the Property, and Tenant may also make claim in any award proceedings for moving expenses, for loss of business, for trade fixtures, and for removal of improvements, fixtures and equipment installed by Tenant. 3.3. Landlord's Representations. In order to induce Tenant to enter into this Agreement, Landlord covenants, represents and warrants, as of the date of this Agreement and throughout its term (except for the representation and warranty contained in Section 3.3(viii) which Landlord represents and warrants as of the date of this Agreement and as of the date of each renewal of the Lease), as follows: (i) Landlord owns good and marketable title to the Property subject to no mortgages, liens, encumbrances, easements, covenants, restrictions, judgments, or other title exceptions except for the Permitted Exceptions; (ii) Landlord has full authority to execute, deliver, and perform this Agreement; (iii) The Property has access to a public road and to all utilities, or Landlord can and will provide such access pursuant to Section 3.13 below; (iv) Landlord and, if applicable, Landlord's beneficiary, has not received any notice of violation of any law, county or municipal ordinance, or other governmental requirement affecting the Property, and Landlord and, if applicable, Landlord's beneficiary, has no reason to believe that any authority contemplates issuing such notice or that any violation exists; (v) Landlord and, if applicable, Landlord's beneficiary, has received no notice of any condemnation or eminent domain proceedings or negotiations for the purchase of the Property, or any part, in lieu of condemnation, and no such proceedings have been threatened in connection with the Property or any part of the Property; (vi) Landlord and, if applicable, Landlord's beneficiary, has disclosed to Tenant all details concerning any past zoning or other land use change applications and building permit change applications that Landlord or, if applicable, Landlord's beneficiary, has applied for or has knowledge of concerning the Property; (vii) There is no litigation or other proceeding pending or threatened affecting title to or the permitted uses of the Property; (viii) Neither Landlord nor, if applicable, Landlord's beneficiary, nor, if Landlord or, if applicable, Landlord's beneficiary, is more than one person, any party constituting a part of Landlord or such beneficiary, has filed or is contemplating filing (nor has there been filed or threatened to be filed against Landlord or any such other party) any action under any state or federal bankruptcy, insolvency or other similar laws. 3.4. No Oral Modification. All prior understandings and agreements between the parties are merged within this Agreement, and this Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. 3.5. Governing Law. This Agreement shall be governed by the laws of the State where the Property is located. -7- — - — -. 3.6. Assignments; Subletting. This Agreement and all rights under this Agreement (including the option to lease, Lease and option to purchase) may be assigned by Tenant, and all or any part of the Property may be subleased by Tenant, without Landlord's consent, to any parent or subsidiary corporation or other corporate affiliate of the general partner of Tenant or to another partnership having Tenant or any of the foregoing parties as a general or limited partner, or, if Tenant is contracting as agent or trustee, to the principal of whom Tenant is an agent or to the beneficiary of the Trust of which Tenant is a Trustee, or to any subsidiary, parent, or other affiliate of such principal or beneficiary, provided that Tenant gives Landlord notice of such assignment or sublease at or a reasonable time after the occurrence of such assignment or sublease. Upon an assignment in compliance with the conditions above and notice to Landlord, Tenant will be released from all subsequently accruing obligations under this Agreement provided that the assignee agrees to assume Tenant's obligations under this Agreement. If Tenant requests, Landlord will execute an instrument evidencing the release of Tenant. All other assignments or subleases shall require Landlord's consent, which shall not be unreasonably withheld, and if Landlord's consent is given, Landlord will release Tenant from its obligations under this Agreement if they are assumed by the assignee. 3.7. Notices. All notices, requests and other writings required under this Agreement (including any notices of the exercise of option, renewal, or termination rights) must be in writing and shall be deemed validly given on the date posted if sent by certified mail, return receipt requested, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice): TENANT: Chicago SMSA Limited Partnership c/o Ameritech Mobile Communications, Inc. 1501 Woodfield Road Suite 200 East Schaumburg, Illinois 60195 (Attn: Vice President-General Counsel, and Real Estate Manager) WITH A COPY TO: Mayer, Brown & Platt 231 South LaSalle Street Chicago, Illinois 60604 (Attn: Ivan P. Kane) LANDLORD: Village of Elk Grove Village 901 Wellington Elk Grove Village, Illinois 60007 (Attn: Village Manager) 3.8. Broker's Commissions. Except for any commission or consulting fee payable to Don Hood, which shall be paid by Tenant, Landlord and Tenant represent and warrant to each other that neither has incurred any obligation to pay any real estate commission to any person or agent in connection with this Agreement, and each party hereby agrees to indemnify and hold the other harmless from and against any and all fees, commissions, suits and related expenses that may arise as a result of the incorrectness of the foregoing representation and warranty. 3.9. Landlord Financing. All mortgages, installment sale contracts, and other financing instruments entered into by the Landlord after the date of this Agreement with respect to the Property or Landlord's interest in this Agreement shall be expressly subject to and subordinate to the rights of the Tenant under this Agreement. 3.10. Deliberately Deleted. 3.11. Deliberately Deleted. 3.12. Bind Successors; Severability. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the parties hereto. If any provision of this Agreement shall to any extent be adjudged invalid or unenforceable, the remainder of this Agreement shall not be affected. 3.13. Easements. (a) In the event that the Property does not abut or is not contiguous with an open public right of way providing access to the Property sufficient for the title insurer to insure, Landlord shall provide Tenant with an easement for access ("the Access Easement"). Tenant (and Tenant's invitees) shall have the right to use the Access Easement for ingress and egress, seven (7) days a week, twenty-four (24) hours a day, on foot or motor vehicle, including trucks, and for the installation and maintenance (either by Tenant or by a utility company) of utility wires, cables, conduits, pipes, and other utility transmitters and connectors over, under or on the Access Easement. The Access Easement shall be sufficiently wide for the Tenant to use it for the above uses to gain the most economical access, in the sole discretion of Tenant, to Parcel I (as described in Exhibit B), but in no case shall it be less than 15 feet or more than 30 feet wide, provided, that it shall include such turnarounds as Tenant may require. Tenant shall have the right to improve the Access Easement either by grading and gravel or by paving it. (b) In the event it is not practicable, in Tenant's opinion or in the opinion of any applicable utility company, to use the Access Easement for the providing of utilities to the Property, Landlord agrees to grant to either Tenant or such utility companies as Tenant may direct, an easement or easements for such utilities as Tenant may deem necessary to serve the Property (whether singular or plural, the "Utility Easement"). The Utility Easement shall be for the installation and maintenance (whether by Tenant or by a utility company) of utility wires, cables, conduits, pipes, and other utility transmitters and connectors over, under or upon the ground extending from a point of connection with the utility company's distribution network to Parcel I (as described in Exhibit B hereto). The Utility Easement shall be sufficiently wide (as determined by Tenant or the applicable utility company) for the providing of the applicable utilities to the Property, but in no event wider than 30 feet. Landlord will join in any additional instruments confirming the Utility Easement as any utility company may reasonably require. (c) In the event an Access Easement and/or Utility Easement is granted to Tenant, the definition of Property in the Recitals shall include the Access Easement and Utility Easement, such easements shall be part of the Property leased hereunder, and Exhibits A and B and Rider A to the Option Memorandum shall be amended to include the Access Easement and Utility Easement. (d) Landlord agrees that in the event that either the Access Easement or the Utility Easement is to be located either in whole or in part on the property of another landowner(s), Landlord will use best efforts to obtain an easement(s) (with the terms and specifications described above) from such landowner(s). (e) Landlord agrees that if as of the date of this Agreement the Access Easement or any necessary separate Utility Easement has not yet been finally located or obtained, then upon the location or obtaining of the same Exhibits A and B and Rider A to the Option Memorandum shall be amended to include such easements. In addition, if subsequent to the date of this Agreement it is determined by Tenant that any Access or Utility Easement obtained does not or no longer adequately serve the Property and Tenant's use thereof, Tenant shall grant or obtain relocated easements as necessary and Tenant will release any easements it has which are no longer necessary. If Landlord is unable to grant or obtain either the Access r Easement or any necessary separate Utility Easement, or to change the location of either as required above, then at Tenant's option this Agreement may be terminated and if the Lease has not yet commenced Tenant shall be entitled to a refund of all Option Money or other amounts paid. 3.14. Date of Agreement; When Binding. This Agreement shall be deemed dated the later of the two dates set forth opposite each party's signature. Presentation of this Agreement by Tenant to Landlord shall not constitute an offer unless such Agreement has been signed by Tenant, and this Agreement shall not be binding until executed by both Landlord and Tenant. 3.15. Performance. The parties agree that time is of the essence of this agreement. 3.16. Substitution of Clean Copy. Should Landlord make any additions, deletions or interlineations ("Changes") on this copy ("Original") of this agreement and then sign the Original, and if the Changes are acceptable to Tenant, Tenant may at its option prepare a clean typed copy ("Amended Original") of the Agreement reflecting the Changes. If Tenant prepares such an Amended Original, Landlord shall sign the Amended Original bearing the same date as the Original upon presentation and the Amended Original shall be substituted for the Original. Date: 11-26-85 LANDLORD VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal co oration Name. Ch es e Title (if an'y):vjdkage ATTEST: Name: Patri.ci.d S. Smith Title (i£ any): Village Clerk Date:�" "I �kJ TENANT CHICAGO SMSA LIMITED PARTNERSHIP, an Illinois limited partnership By its general partner, Ameritech Mobile Phone Service of icago ai Iinois corporation By: Name: C-y4jo QS A ES Y) PRES/pEAI� B . Nam Title if any): "tl - -10- -- TABLE OF EXHIBITS Exhibit A Outline of the Property (Recitals) Exhibit B Legal Description of the Property (Recitals) Exhibit C Memorandum of Option and Lease (Section 1.2) rte;; r EXHIBIT B ACCESS EASEMENT- LEGAL DESCRIPTION THE NORTH 86 . 5 FEET ( EXCEPT 3 THE NORTH 20 FEET THEREOF DEDICATED FOR ROADWAY PER ' DOCUMENT NO - 20804133 AND EXCEPT THE EAST 60 FEET THEREOF ) OF THE WEST 110 FEET OF THE EAST 553 . 10 FEET OF LOT 19 IN CENTEX INDUSTRIAL PARK UNIT 4 , BEING A SUBDIVISION IN SECTION 35 , TOWNSHIP 41 NORTH , RANGE 11 , EAST OF THE THIRD PRINCIPAL MERIDIAN , ACCORDING TO THE PLAT THEREOF RECORDED NOVEMBER 2 , 1959 AS DOCUMENT LRIS94159V IN COOK COUNTY , ILLINOIS _ TEASE SITE - LEGAL OESCRIPTION THE NORTH 86 . 5 FEET ( EXCEPT 4 THE NORTH 26 . 5 FEET THEREOF ) OF THE EAST 60 FEET OF THE WEST 110 FEET OF THE EAST 553 . 10 FEET OF LOT 19 IN CENTEX INDUSTRIAL PARK UNIT 4 , BEING A SUBDIVISION IN SECTION 35 , TOWNSHIP 41 NORTH , RANGE 11 , EAST OF THE THIRD PRINCIPAL MERIDIAN , ACCORDING TO THE PLAT THEREOF RECORDED_ NOVEMBER 2 , 1959 AS DOCUMENT LR1994159 , IN COOK COUNTY , 1 L L I N O J S . Ny TJN Y 1 4 Y w EXHIBIT C MEMORANDUM OF OPTION AND LEASE This Memorandum of Option and Lease is made this day of 1986 between VILLAGE OF ELK GROVE VILLAGE, 901 Wellington Aenue, Elk Grove Village, Illinois 60007, as the Landlord, and CHICAGO SMSA LIMITED PARTNERSHIP, having an address c/o Ameritech Mobile Communications, Inc., 1501 Woodfield Road, Suite 200 East, Schaumburg, Illinois 60195 (Attn: Vice President-General Counsel and Real Estate Manager) as the Tenant. WITNESSETH: (1) Landlord and Tenant haye entered into an Option and Lease Agreement (the "Lease") dated , 19881, granting to Tenant an option (the "Option") to lease the premises in the County of Cook, Village of Elk Grove Village, and State of Illinois legally described on Rider A attached to and made a part of this Memorandum. (2) The initial term of said Lease is five (5) years beginning on the date (the "Exercise Date") of exercise of the Option. The initial term of the Option ends on January 1, 1986, unless Tenant exercises Tenant's rights to renew the Option until July 1, 1986, at which time the Option will end unless further extended by mutual agreement of the parties. (3) Tenant has a right to extend said initial term for four (4) successive periods of five (5) years each. Said rights of extension are exercisable as follows: The Tenant giving the Landlord written notice of its intention to extend at least thirty (30) days prior to the end of the then current term. The maximum date to which this Lease may be extended is twenty-five (25) years after the Exercise Date, unless at the end of the fourth five (5) year extension term the Lease has not been terminated by Landlord or Tenant as set forth in the Lease, in which case the Lease shall continue in force upon the same covenants, terms and conditions for a further term of one (1) year, and so on from year to year until terminated by either party in compliance with the Lease. (4) The Lease contains provisions to the effect that all improvements (including fixtures) added to the leased premises by Tenant shall be Tenant's property and shall be removed by Tenant within ninety days after termination of the Lease, except Tenant will not be required to remove any underground piping or wiring or any other fixtures or improvements at or below ground level. At Landlord's request made before the termination date of the Lease and before Tenant commences removing the same, Tenant will leave any security fence built by Tenant to become the property of Landlord, but Tenant may in any case remove any building, all of its equipment, and any antenna installed at the Property. In witness whereof, Landlord and Tenant have caused this Memorandum of Option and Lease to be executed by themselves or their duly authorized officers as of the day and year written above for the purpose of providing an instrument for recording. LANDLORD TENANT VILLAGE OF ELK GROVE VILLAGE, CHICAGO SMSA LIMITED PARTNERSHIP, an Illinois municipal corporation an Illinois limited partnership By its general partner, Ameritech Mobile Phone Service of Chicago, an Illinois corporation B y:4 By: Name: elk Name: (C/} Title (if ny i e President Title (if any) Vf6E r45S/ ATTEST: / :TEST: Name: Patr•r;, S. Smith a Title (if any) Village Clerk Title (if any) b�L/! -2- STATE OF ILLINOIS ) LANDLORD'S ) SS ACKNOWLEDGMENT COUNTY OF ) Nora E. Layton Charles J. Zettek I, , a Notary Public, do hereby certify that personally known to me to be the Pres. of the VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal corporation, and Patricia S. Sm;gbersonally known to me to be the Village Clerk of said corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and sever- ally acknowledged that as suchPres. and Clerk , they signed and delivered the said instrument as Pres. and Clerk of said corporation, and caused the corporate seal of said corporation to be affixed thereto, pursuant to authority, given by the Board of Directors of said corporation as their free and voluntary act, and as the free and volun- tary act and deed of said corporation, for the uses and purposes therein set forth. Given under my hand and notarial seal, this5thday of December, 1985. My commission expires: May 28, 1986 Notary Public ' �."OA LIMITED PARTNERSHIP ACKNOWLEDGMENT STATE OF ILLINOIS ) ) SS. COUNTY OF COOK ) I, ( /W/! Y1 NK,e a Notary Public in and for said County, in the state aforesaid, DO HEREBY CERTIFY that�!// /lj�(CffJS, personally known to me to be the VOi President of Ameritech Mobile Phone Service of Chicago, an Illinois corporation and *149,A445 J personally known to me to be the A�r Secretary of said corporation, w ich corporation is sole general partner of CHICAGO SMSA LIMITED PARTNERSHIP, a /000 limited partnership, and who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such VICE President, and AF 5r Secretary, respectively, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act, as the free and voluntary act of said corporation, and as the free and voluntary act of said partnership for the uses and purposes therein set forth. Given under my hand and Notarial Seal thisday of Notary Public My Commission Expir/e/s; llvl THIS INSTRUMENT WAS PREPARED BY (AND AFTER RECORDING RETURN TO): Harry P. Carter Mayer, Brown & Platt 231 South LaSalle Street Chicago, Illinois 60604 V nv+� t/miaiZ pi ACCESS EASEMENT- LEGAL DESCRIPTION THE NORTH 86 . 5 FEET ( EXCEPT THE NORTH 20 FEET THEREOF 3 DEDICATED FOR ROADWAY PER DOCUMENT NO . 20804133 AND w EXCEPT THE EAST 60 FEET THEREOF ) OF THE WEST 110 FEET OF THE EAST 553 . 10 FEET OF LOT 19 IN CENTEX INDUSTRIAL PARK UNIT 4 , BEING A SUBDIVISION IN SECTION 35 , TOWNSHIP 41 NORTH , RANGE 11 , EAST OF THE THIRD PRINCIPAL MERIDIAN , ACCORDING TO THE PLAT THEREOF RECORDED y NOVEMBER 2 , 1959 AS DOCUMENT - LR1894159 , IN COOK COUNTY , ILLINOIS . TEASE SITE - LEGAL DESCRIPTION ti THE NORTH 86 . 5 FEET ( EXCEPT THE NORTH 26 . 5 FEET THEREOF ) OF THE EAST 60 FEET OF THE WEST 110 FEET OF THE EAST ' 553 . 10 FEET OF LOT 19 IN CENTEX INDUSTRIAL PARK UNIT 4 , BEING A SUBDIVISION IN SECTION 35 , TOWNSHIP 41 NORTH , RANGE 119 EAST OF THE THIRD PRINCIPAL MERIDIAN , ACCORDING '> - TO THE PLAT THEREOF RECORDED_ NOVEMBER 2 , 1959 AS DOCUMENT LR1894159 , IN COOK COUNTY , ILLINOIS . yC ' S Village President Village Trustees 1 a CHARLES J. ZETTEK JOSEPH T. BOSSLFT Village Clerk RONALD L. CHERNICK PATRICIA S. SMITH DENNI ANO EDWARD R. HAUSERGrO` e Village Manager JAMES P. PETRIVillage CHARLES A. WILLIS MICHAEL A. TOSTO January 6 , 1986 Ms . Sandranne M. Benson C hl _ E13 FI Manager , Real Estate Ameritech Mobile Communications 1501 Woodfield Road Suite 200 East Schaumburg, IL 60195 RE: Village of Elk Grove Village and Chicago SMSA Limited Partnership Option and Lease Agreement Dear Ms. Benson: The Village has been advised that a title and tax search made on the property subject to the above referenced matter discloses a real estate tax forfeiture for the year 1968 . The Attorneys representinq Ameritech and the Village, in discussing this tax forfeiture, have concluded that while such encumbrance may be deemed a permitted exception, as long as the property is owned by the Village of Elk Grove Village, such may not be the case should the Village convey the property to a private party. It is , therefore, deemed necessary to amend Sec. 1. 4 of the Option and Lease Agreement by adding thereto the following language : Should the Village during the period of this Lease Agreement sell , convey or otherwise assign its interest in the subject property to a third party, the Village will first cause the 1968 tax forfeiture title objection to be abated , waived or otherwise cleared by the filing of a Certificate of Error and pro- cessing same with the Assessor' s Office of Cook County to the extent that the forfeiture is abated or by causing the tax assessment plus any interest due and owing to be paid. If the Village fails to cause the tax objection on title to be abated then the Lessee shall have the authority to pay such tax if the Lessee ' s legal right to possession is being threatened and off-set said payment against rental payments due the Village or its Vendee. 901 WELLINGTON AVENUE 0 TELEPHONE (312) 439-3900 • ELK GROVE VILLAGE, ILLINOIS 60007 Page 2 With the amendment as above set forth, it is the Village ' s understanding that Ameritech will not terminate the Option and Lease Agreement due to the provisions set forth in paragraph 1. 4 of said Agreement pertaining to exceptions or objections to title. Would you kindly indicate your agreement to this amendment as above set forth by signing a copy of this letter and returning same to the undersigned. Sincerely -- yours, CHARLES A. WILLIS Village Manager TO BE INSERTED ON COPY OF LETTER: APPROVED: CHICAGO SMSA LIMITED PARTNERSHIP, an Illinois Limited Partnership BY: ejav . R� EV4iv Q -,ercHIW�Q5 VICE P/ZEs1VC_7A r