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HomeMy WebLinkAboutFidelity Towers Inc-4/18/2011OPTION AND LAND LEASE AGREEMENT This Option and Land Lease Agreement ("Agreement") entered into as of the date set forth on the signature page hereof by and between City of Waterloo, Iowa, acting by and through the Leisure Services Commission, formerly known as the Board of Park Commissioners, whose address is City of Waterloo, Iowa City Hall, 715 Mulberry Street, Waterloo, Iowa 50703 ("Owner") and Fidelity Towers Inc., a Nevada corporation, whose address is 7539 East Stroh Road, Parker, CO 80134 ("Tenant"), provides for the granting and leasing of certain property interests on the following terms: For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. PROPERTY. Subject to the terms and conditions as provided herein, the property interests hereby leased and granted by Owner ("Premises") shall include the following: 1. Real property comprised of approximately Twenty-five hundred (2500) square feet of land 2. Non — exclusive easement required to run utility lines and cables 3. Non — exclusive easement across Owner's Property (hereinafter defined) for access IN OR UPON THE Owner's real property ("Owner's Property") located near the intersection of East Ridgeway Avenue and W. 11th Street in Waterloo, Black Hawk County, State -of Iowa, which Owner's Property is otherwise identified as Parcel # 8913-36-353-002, and more particularly described on Exhibit "A" and the Premises which are more particularly described on Exhibit "B" both exhibits of which are attached hereto and incorporated herein by this reference as if fully set forth. 2. OPTION. In consideration of the sum of FIVE HUNDRED AND NO/100 DOLLARS ($500.00) (the "Option Money"), to be paid by Tenant to Owner within thirty (30) days of Tenant's execution of this Agreement, and subject to delivery of the Option Money, Owner hereby grants to Tenant the exclusive right and option (the "Option") to lease the Premises in accordance with the terms and conditions set forth herein. Tenant's obligation to pay the Option Money is contingent upon Tenant's receipt of a W-9 form setting forth the tax identification number or social security number of Owner, person or entity, to whom the Option Money is to be made payable as directed in writing by Owner. OPTION PERIOD. The Option may be exercised at any time within Twelve (12) months of the execution of this Agreement by all parties (the "Option Period"). At Tenant's election and upon Tenant's written notice to Owner and delivery of an additional payment of FIVE HUNDRED AND NO/100 DOLLARS ($500.00) to Owner prior to expiration of the Option Period, the Option Period may be further extended for an additional Twelve (12) months. The Option Period may be further extended by mutual written agreement of the parties at the same rate as set forth hereinabove. If Tenant fails to exercise the Option within the Option Period as it may be extended as provided herein, the Option shall terminate, and all rights and privileges granted hereunder shall be deemed surrendered. Owner shall retain all money paid for the Option, and no additional money shall be payable from either party to the other. Tenant shall not commence construction of the Communication Facility (as defined herein) before the Commencement Date (as hereafter defined). During the Option Period, Tenant may conduct Tests (as defined in Paragraph 5(f) below) on the Owner's Property. Upon the conclusion of the Tests, the Premises shall be returned to Owner in substantially similar condition as it was prior to the commencement of the Tests. CHANGES IN PROPERTY DURING 'I'LL OPTION PERIOD. If during the Option Period or any extension thereof; or during the term of this Agreement if the Option is exercised, Owner decides to sell, subdivide, or change the status of the zoning of the Premises or Owner's Property, Owner shall immediately notify Tenant in writing. Any sale of Owner's Property shall be subject to Tenant's rights under this Agreement. Owner agrees that during the Option Period or any extension thereof, or during the term of this Agreement if the Option is exercised, Owner shall not initiate or consent to any change in the zoning of Owner's Property or consent to any other restriction that would prevent or limit Tenant from using the Premises for the uses intended by Tenant as hereinafter set forth in this Agreement. Site Name: Waterloo, IA 3. TERM. The term of this Agreement shall be five (5) years commencing on the date ("Commencement Date") specified in Tenant's written notice to Owner that Tenant is exercising the Option, and terminating on the fifth annual anniversary of the Commencement Date (the "Term"), unless otherwise terminated as provided in Paragraph 16. In no event will the Commencement Date be any later than the date that Tenant begins construction of the Communications Facility (as such term is defined in Paragraph 5 below). Tenant shall have the right to extend the Term for five (5) successive five (5) year periods (each a "Renewal Term" and collectively the "Renewal Terms") on the same terms and conditions as set forth herein. This Agreement shall automatically be extended for each successive Renewal Term unless Tenant notifies Owner, in writing, of its intention not to renew prior to commencement of the succeeding Renewal Term. 4. RENT. (a) Tenant shall pay to Owner an annual lease fee of NINE THOUSAND SIX HUNDREDAND 00/100 DOLLARS ($9,600.00) ("Rent") in monthly payments of EIGHT HUNDRED AND 00/100 DOLLARS ($800.00) commencing on the Commencement Date and on the first day of each month thereafter. If the obligation to pay Rent commences or ends on a day other than the first day of the month, then the Rent shall be prorated for that month. The Rent shall increase by Fifteen Percent (15%) with each Renewal Term. The first Rent payment shall be delivered within twenty (20) business days of the Commencement Date. 5. USE. (a) Subject to the terms and conditions of this Agreement and only after the Option to lease the Premises is exercised, Tenant may use the Premises for the purpose of constructing, installing, removing, replacing, maintaining and operating a communications facility subject to such modifications and alterations as required by Tenant (collectively, the "Communications Facility"), provided that Tenant shall not be required to occupy the Premises. The Communications Facility may include, without limitation, a tower, antenna arrays, dishes, cables, wires, temporary cell sites, equipment shelters and buildings, electronics equipment, generators, and other accessories. Owner shall provide Tenant with twenty four (24) hour, seven (7) day a week, year-round access to the Premises. Tenant shall construct a fence around the Premises subject to the zoning and building permit requirements of the governing municipality. Tenant agrees to comply with all applicable governmental laws, rules, statutes and regulations, relating to its operation, construction and use of the Communications Facility on the Premises. Tenant shall be responsible for maintaining any access road to the Premises. Tenant shall have the right to park its vehicles on Owner's Property within fifty (50) feet of and immediately adjacent to the Premises when Tenant is constructing, removing, replacing, and/or servicing its Communications Facility, provided that Tenant remedies any damage caused by such vehicles. (b) The Communications Facility and all modifications, repairs and maintenance shall be constructed to industry standards and in a workmanlike manner, in accordance with this Agreement. (c) Tenant shall make proper arrangements for receiving, handling, storage and installation of its equipment and other personal property. Owner shall not be liable for any loss, damage or injury to properties of any kind that are shipped or otherwise delivered to or stored in or on the Premises or Owner's Property, except to the extent caused by the gross negligence or willful misconduct of Owner, its employees, agents, or contractors. Owner shall assume no responsibility for losses suffered by Tenant, its agents, employees or invitees, which are occasioned by theft except to the extent such loss, damage or injury is caused by the gross negligence or willful misconduct of Owner, its employees, agents, or contractors. (e) Owner shall timely pay all real property taxes and assessments against the Owner's Property. Tenant shall pay any increase in real property taxes, directly or via reimbursement to Owner, attributed to the Premises and any of the improvements thereon within thirty (30) days of receipt from Owner of a copy of said tax bill evidencing such an increase. Tenant shall pay all personal property taxes attributed to the Premises and any improvements thereon. (f) During the Option Period, Tenant, its agents and contractors, are hereby granted the right, at Tenant's sole cost and expense, to enter upon the Owner's Property and conduct such studies, as Tenant deems necessary to determine the Premises' suitability for Tenant's intended use. These studies may include surveys, soil tests, environmental evaluations, radio wave propagation measurements, field strength tests and such other analyses and studies, as Tenant deems necessary or desirable (collectively, the "Tests"). Tenant shall not be liable to Owner or any third party on account of any pre-existing defect or condition on or with respect to Owner's Property, whether or not such defect or condition is disclosed by the Tests. Following completion of any testing activities, Tenant shall restore the Premises as nearly as possible to its previous condition. (g) Throughout the term of this Agreement, Owner shall cooperate with Tenant and execute all documents required to permit Tenant's intended use of the Premises in compliance with zoning, land use, utility service, and for building regulations. Notwithstanding any contrary statement in this paragraph or this Site Name: Waterloo, IA Agreement, Tenant acknowledges that Owner is a governmental authority possessing regulatory power with respect to certain project approvals and that in reviewing or taking action upon any request for approval Owner will not extend to Tenant any special consideration that is not generally made available to any other party making a substantially similar request for approval. Subject to the foregoing, Owner shall not take any action that would adversely affect Tenant's obtaining or maintaining any governmental approval. Owner agrees to cooperate promptly and in good faith with any request from Tenant relating to making such filings and taking such actions as are necessary to obtain any desired zoning, land use approvals and/or building permits required for. Tenant's intended use of the Premises. 6. SUBLEASING. Tenant has the right to sublease any portion of the Premises during the Term and Renewal Terms of this Agreement, without Owner's consent, subject to the following conditions (i) the term of the sublease may not extend beyond the Term and any Renewal Terms of this Agreement, (ii) all subleases are subject to all the terms, covenants, and conditions of this Agreement, and (iii) all subleases shall require that antennas and equipment placed on the tower do not increase its overall height or diameter . Any sublease not meeting these aforementioned criteria shall require Owner's consent, prior to installation of antennas and equipment. It is contemplated that all subleases shall be of the right to affix antennas and related equipment on the tower, and not of the right to erect any additional tower on the Premises. 7. ASSIGNMENT. (a) Tenant shall have the right to freely assign or transfer its rights under this Agreement, in whole or in part, to its holding company, or any company that acquires substantially all of Tenant's assets, at any time, without Owner's consent. Tenant shall have the right to assign or transfer its rights under this Agreement, in whole or in part, to any person or any business entity at any time, upon prior written consent of Owner, which shall not be unreasonably withheld. After delivery by Tenant of an instrument of assumption by an assignee that assumes all of the obligations of Tenant under this Agreement to Owner, Tenant will be relieved of all liability thereafter accruing after the date of such assignment. (b) Tenant may assign, pledge, mortgage or otherwise encumber its interest in this Agreement to any third party (a "Leasehold Lender") as security for any loan to which Owner hereby consents to without requirement of further evidence of such consent. The Leasehold Lender may secure its interest in such a loan by Tenant's grant of (i) a leasehold mortgage and assignment of rents, leases, contracts, etc. (the "Leasehold Mortgage") encumbering all of Tenant's interest in this Agreement and the Premises; (ii) a security agreement and other security documents (the "Security Agreements") that will encumber and grant a security interest in all of Tenant's now or hereafter existing tangible or intangible personal property located on, derived from, or utilized in connection with the Premises and the Agreement (collectively the "Personal Property"). 1. Successors. Any Leasehold Lender under any note or loan secured by a Leasehold Mortgage or deed of trust lien on Tenant's interest (or any successor's interest to Tenant's interest) who succeeds to such interest by foreclosure, deed in lieu of foreclosure, or otherwise, may take title to and shall have all of the rights of Tenant under this Agreement including the right to exercise any renewal option(s) or purchase option(s) .set forth in this Agreement, and to assign this Agreement as permitted hereunder. 2. Default Notice. Owner shall deliver to the initial Leasehold Lender and any subsequent Leasehold Lender(s) (for such subsequent Leasehold Lender(s) at the address as Tenant or Leasehold Lender shall affirmatively inform Owner by written notice hereof) a copy of any default notice given by Owner to Tenant under this Agreement. No default notice from Owner to Tenant shall be deemed effective against the Leasehold Lender unless sent to the notice address for Leasehold Lender (if provided to Owner as set forth herein) or as amended from time to time. 3. Notice and Curative Rights. If Tenant defaults on any monetary obligations under this Agreement then Owner shall accept a cure thereof by the Leasehold Lender within thirty (30) days after Leasehold Lender's receipt of written notice of such default. For non -monetary defaults, Owner will not terminate this Agreement for so long as Leasehold Lender is diligently pursuing a cure of the default, provided such period of time shall not exceed sixty (60) days without Owner's prior written consent, and if curing such non -monetary default requires possession of the Premises then Owner agrees to give the Leasehold Lender a reasonable period of time to obtain possession of the Premises and to cure such default. 4. No Amendment. This Agreement may not be amended in any respect which would be reasonably likely to have a material adverse effect on Leasehold Lender's interest therein and this Agreement will not be surrendered, terminated or cancelled either (i) by Tenant without the prior written consent of the Leasehold Lender, or (ii) by Owner without prior written notice to the Leasehold Lender as provided for herein. Site Name: Waterloo, IA 5. New Lease. If this Agreement is terminated for any reason or otherwise rejected in bankruptcy then Owner may enter into a new lease with Leasehold Lender (or its designee) on the same terms as this Agreement as long as Leasehold Lender pays all past due amounts and cures any other non -monetary default under this Agreement within thirty (30) calendar days of notice of such termination. 6. Subordination. Owner may, in its sole discretion, agree that all right, title and interest of the Owner in and to any collateral encumbered by the Leasehold Mortgage or Security Agreements in favor of Leasehold Lender, may be subordinated and made subject, subordinate and inferior to the lien and security interest of the Leasehold Mortgage and Security Agreements, which subordination shall remain in effect for any modifications or extensions of the Leasehold Mortgage and Security Agreements. 7. Leasehold Lender/Third Party Beneficiary. Any Leasehold Lender shall be considered a third party beneficiary of the terms and conditions of this Agreement. 8. Notice. Notices to Leasehold Lender shall be sent to such address as provided to Owner by Tenant from time to time and as may be amended from time to time by written notice to Owner from Tenant. 8. TRANSFER WARRANTY. During the term of this Agreement, Owner covenants and agrees that it will not grant, create, or suffer any claim, lien, encumbrance, easement, restriction, or other charge or exception to title to the Owner's Property and the Premises that adversely affects Tenant's rights under this Agreement. Upon Tenant's prior written consent, Owner may sell, lease, transfer, grant a perpetual easement or otherwise convey all or any part of the Owner's Property to a transferee and such transfer shall be under and subject to this Agreement and all of Tenant's rights hereunder. It is agreed that in no event will Owner allow any sale, lease, transfer, or grant of easement that adversely affects Tenant's rights under this Agreement. 9. UTILITIES. Tenant shall have the right, at its sole expense, to install or improve utilities servicing Owner's Property (including, but not limited to, the installation of emergency power generators, power lines and utility poles). Payment for electric service and for telephone or other communication services to the Communications Facility shall be Tenant's sole responsibility. At no cost or expense to Owner, Owner agrees to cooperate with Tenant in its efforts to obtain, install and connect the Communications Facility to existing utility service at Tenant's expense. Notwithstanding the foregoing, Tenant shall secure its own metered electrical supply. To the greatest extent feasible, power lines and other utilities to serve the Communications Facility will be located underground. 10. OWNERSHIP OF COMMUNICATIONS FACILITY. All portions of the Communication Facility will be and remain Tenant's personal property and, at Tenant's option, may be removed by Tenant at any time during the Term or any Renewal Term. Owner covenants and agrees that no part of the Communication Facility constructed, erected or placed on the Premises by Tenant will become, or be considered as being affixed to or a part of, Owner's Property, it being the specific intention of the Owner that all improvements of every kind and nature constructed, erected or placed by Tenant on the Premises will be and remain the property of the Tenant and may be removed by Tenant at any time during the Term or any Renewal Term. 11. MAINTENANCE. Tenant will use best efforts to maintain the Premises in good condition and state of repair. Except insofar as Tenant is made responsible by this Agreement, Owner will maintain the Owner's Property surrounding the Premises in good condition and state of repair. 12. REMOVAL OF COMMUNICATIONS FACILITY. Upon written request of Owner, to be given within ten (10) days of the expiration or earlier termination of this Agreement, or at Tenant's option, above -ground improvements, including but not limited to all personal property and trade fixtures of Tenant, specifically including the tower, fences, concrete pads and buildings, as well as any foundation down to a depth of four (4) feet below grade level shall be removed by Tenant within sixty (60) days after the expiration or earlier termination of this Agreement, and Tenant, at its sole expense, shall restore Owner's Property as nearly as possible to its condition before construction of Tenant's improvements. If Tenant's personal property and trade fixtures are not removed within sixty (60) days after expiration or termination of this Agreement, said property will be deemed to be abandoned and will become the property of Owner. Following abandonment, Tenant shall be liable for all costs incurred by Owner to dismantle, demolish or remove Tenant's improvements as set forth above. Site Name: Waterloo, IA 13. INSURANCE. Tenant shall maintain commercial general liability insurance insuring Tenant against liability for personal injury, death or damage to personal property arising out of use of the Premises by Tenant or any agent or independent contractor of Tenant, with combined single limits of One Million Dollars ($1,000,000). Certificates or copies of said policies, naming Owner as an additional insured, and providing for thirty (30) days' advance notice to Owner before cancellation, shall be delivered to Owner no later than the Commencement Date. A renewal certificate shall be provided to Owner prior to expiration of any policy. 14. CONDITION OF PROPERTY. Ownerrepresents, to the best of its _knowledge that the Owner's Property and all improvements thereto, if any, are in compliance with all building, life/safety, and other laws of any governmental or quasi -governmental authority. The parties agree that Owner shall have no responsibility to prepare the Property in any way for Tenant's use. It is currently contemplated that no trees will need to be removed to allow construction and operation of the Communications Facility, and in no event will any trees be removed without the prior written consent of Owner. 15. TERMINATION BY TENANT. Tenant may terminate this Agreement at any time, in its sole discretion by giving written notice thereof to Owner not less than thirty (30) days prior to the Commencement Date. Further, this Agreement may be terminated by Tenant immediately, at any time, upon giving written notice to Owner, if (a) Tenant cannot obtain all governmental certificates, permits, leases or other approvals (collectively, "Approvals") required and/or any easements required from any third party, or (b) any Approval is canceled, terminated, expired or lapsed, or (c) Owner fails to deliver any required non -disturbance agreement or subordination agreement, or (d) Owner breaches a representation or warranty contained in this Agreement and such breach is not cured within thirty (30) days of written notice from Tenant to Owner, or (e) Owner fails to have proper ownership of the Owner's Property and/or authority to enter into this Agreement, or (f) Tenant determines that the Owner's Property contains substances of the type described in Section 18 of this Agreement and such substances were not the result of Tenant's use of the Property, or (g) Tenant determines that the Premises is not appropriate for its operations for economic, environmental or technological reasons. 16. INDEMNITY. Owner and Tenant hereby agree to indemnify and defend each other against, and to hold harmless each other from, any and all costs -(including reasonable attorney's fees and expenses) and claims, actions, damages, obligations, liabilities and liens which arise out of (a) the breach of this Agreement by the indemnifying party; and (b) the use and/or occupancy of the Premises, or the balance of the Owner's Property, by such indemnifying party. This indemnity shall not apply to any claims, actions, damages, obligations, liabilities and liens arising from any negligent acts or omissions or intentional misconduct of the indemnified party and shall survive the termination of this Agreement. These provisions of the Agreement relating to indemnification shall survive any termination or expiration of this Agreement. 17. HAZARDOUS SUBSTANCES. Owner represents that to the best of its knowledge there is no substance, chemical, or waste on the Owner's Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. Owner shall hold Tenant harmless from and indemnify Tenant against any damage, loss, expense, response costs, or liability, including consultant fees and attorneys' fees resulting from the presence of hazardous substances on, under or around the Owner's Property or resulting from hazardous substances being generated, stored, disposed of, or transported to, on, under, or around the Owner's Property as long as the hazardous substances were not generated, stored, disposed of, or transported by Tenant or its employees, agents or contractors. Owner and Tenant agree that each will be responsible for their respective compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene condition or other matters as may now or at any time hereafter be in effect, that are now or were related to that party's activity conducted in or on the Owner's Property. Owner and Tenant shall hold each other harmless from and indemnify and defend each other against any damage, loss, expense, response costs, or liability, including reasonable consultant fees and attorneys' fees resulting from the indemnifying party's failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or matters as may now or hereafter be in effect. Site Name: Waterloo, IA 18. CASUALTY/CONDEMNATION. (a) If any portion of the Owner's Property or -Communication Facility is damaged by any casualty and such damage adversely affects Tenant's use of the property, or if a condemning authority takes any portion of the Owner's Property and such taking adversely affects Tenant's use of the Owner's Property, this Agreement shall terminate as of the date of casualty or the date the title vests in the condemning authority, as the case may be if Tenant gives written notice of the same within thirty (30) days after Tenant receives notice of such casualty or taking. The parties shall be entitled to make claims in any condemnation proceeding for value of their respective interests in the Property (which for Tenant may include, where applicable, the value of the Communications Facility, moving expenses, prepaid Rents, and business dislocation expenses). Sale of' all or part of the Owner's Property including the Premises to a purchaser with the power of eminent domain in the face of the exercise of the power shall be treated as a taking by condemnation. (b) Notwithstanding anything in this Agreement to the contrary, in the event of any casualty to or condemnation of the Premises or any portion thereof during such time as any Leasehold Mortgage shall remain unsatisfied, the Leasehold Lender shall be entitled to receive all insurance proceeds and/or condemnation awards applicable to the Premises (up to the amount of the indebtedness secured by the Leasehold Mortgage) otherwise payable to Tenant and apply them in accordance with the Leasehold Mortgage and shall have the right, but not the obligation, to restore the Premises. 19. LIENS. Neither Tenant, nor anyone claiming by, through or under Tenant, shall have the right to place any lien, mortgage or encumbrance upon the Premises during the Term or any Renewal Term of this Agreement, except as provided by Section 7. If any such lien, mortgage or encumbrance, except as provided by Section 7, is placed on the Premises, Tenant shall promptly undertake such action as is necessary to have it released or removed. 20. QUIET ENJOYMENT. Tenant, upon payment of the Rent, shall peaceably and quietly have, hold and enjoy the Premises. If as of the date of execution of this Agreement or hereafter, there is any mortgage, or other encumbrance affecting Owner's Property, then Owner agrees to use its best efforts to obtain from the holder of such encumbrance a Non -Disturbance and Attomment Agreement that Tenant shall not be disturbed in its possession, use, and enjoyment of the Premises, provided it is not in default of the Agreement. Owner shall not cause or permit any use of Owner's Property that interferes with or impairs the quality of the communication services being rendered by Tenant from the Premises. Owner chall not grant any other person or entity the right to operate a wireless communication facility on Owner's Property without the express written consent of Tenant. Except in cases of emergency threatening life and/or personal property, Owner shall not have access to the Premises unless accompanied by Tenant personnel. 21. DEFAULT. Except as expressly limited herein, Owner and Tenant shall each have such remedies for the default of the other party hereto, as may be provided at law or equity and including the right to terminate this Agreement, following written notice of such default described in reasonable detail with a demand to cure and failure to cure the same within thirty (30) days. For non -monetary defaults, Owner will not terminate this Agreement for so long as Tenant is diligently pursuing a cure of the default provided such period of time shall not exceed sixty (60) days from receipt by Tenant of notice and demand to cure. If pursuant to the provisions of this Agreement or as a matter of law, Owner shall have the right to terminate this Agreement, then (a) Owner shall take no action to terminate the Agreement without first giving to the Leasehold Lender written notice of such right, a description of the default in reasonable detail, and a reasonable time thereafter not to exceed sixty (60) days from the receipt of such notice, (i) in the case of a default susceptible of being cured by the Leasehold Lender, to cure such default or (ii) in the case of a default not so susceptible of being cured by the Leasehold Lender, to institute, prosecute and complete foreclosure proceedings to otherwise acquire Tenant's interest under this Agreement; provided however, that the Leasehold Lender shall not be obligated to continue such possession or continue such foreclosure proceedings after such default shall have been cured, and (b) absent a Leasehold Lender, Owner may only exercise its right to terminate by providing written notice of termination to Tenant. 24. ESTOPPEL CERI'IJiICATES. Owner shall from time to time, within fourteen (14) days after receipt of request by Tenant, deliver a written statement addressed to Tenant or any Leasehold Lender certifying: (a) that this Agreement is unmodified and in full force and effect (or if modified that this Agreement as so modified is in full force and effect); Site Name: Waterloo, IA (b) that the agreement attached to the certificate is a true and correct copy of this Agreement, and all amendments hereto; (c) that to the knowledge of Owner, Tenant has not previously assigned or hypothecated its rights or interests under this Agreement, except as described in such statement with as much specificity as Owner is able to provide; (d) the term of this Agreement and the. Rent then in effect and any additional charges; (e) the date through which Tenant has paid the Rent; (f) that Tenant is not in default under any provision of this Agreement (or if in default, the nature thereof in detail) and a statement as to any outstanding obligations on the part of Tenant and Owner; and (g) such other matters as are reasonably requested by Tenant. Without in any way limiting Tenant's remedies which may arise out of Owner's failure to timely provide an estoppel certificate as required herein, Owner's failure to deliver such certificate within such time shall be conclusive (i) that this Agreement is in full force and effect, without modification except as may be represented by Tenant; (ii) that there are no uncured defaults in Tenant's or Owner's performance hereunder; and (iii) that no Rent for the then current month, has been paid in advance by Tenant. 25. SEVERABILITY. If any section, subsection, term or provision of this Agreement or the application thereof to any party or circumstance will, to any extent, be invalid or unenforceable, the remainder of the section, subsection, term or provision of the Agreement or the application of same to parties or circumstances other than those to which it was held invalid or unenforceable, will not be affected thereby and each remaining section, subsection, term or provision of this Agreement will be valid or enforceable to the fullest extent permitted by law. 26. INTERPRETATION. Each party to this Agreement and its counsel have reviewed and had the option to revise this Agreement. The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or of any amendments or exhibits to this Agreement. 27. MISCELLANEOUS (a) Owner represents and warrants that Owner has full authority to enter into and sign this Agreement and has good and indefeasible fee simple title to the Owner's Property. The person executing on behalf of Owner represents individually that such person has the authority to execute this Agreement on behalf of Owner. (b) Tenant warrants and represents that it is duly authorized to do business in the state in which the Premises is located and that the undersigned is fully authorized by Tenant to enter into this Agreement on behalf of Tenant. (c) This Agreement supersedes all prior discussions and negotiations and contains all agreements and understandings between the Owner and Tenant. A writing signed by both parties may only amend this Agreement. (d) The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of that provision by the same party, or of any other provision or condition of the Agreement. (e) The headings of sections and subsections are for convenient reference only and will not be deemed to limit, construe, affect, modify or alter the meaning of the sections or subsections. (f) Time is of the essence of Owner's and Tenant's obligations under this Agreement. Site Name: Waterloo, IA (g) The parties may sign this Agreement in counterparts hereto. (h) The terms and conditions of this Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of Owner and Tenant. (i) The prevailing party in any action or proceeding in court to enforce the terms of this Agreement shall be entitled to receive its_reasonable attorneys' fees and other reasonable enforcement costs and expenses from the non -prevailing party. (j) Owner shall execute and acknowledge and deliver to Tenant for recording a Memorandum of this Agreement ("Memorandum") upon Tenant's reasonable request to properly memorialize and give notice of this Agreement in the public records. Tenant will record such Memorandum at Tenant's sole cost and expense. (k) Rent payments and notices, requests, and other communication shall be in writing and sent by United States Mail, postage prepaid, certified or registered with return receipt requested or by any nationally recognized overnight courier service to the address set forth beneath the signature of each party below. Any such notice shall be deemed given when deposited in the United States Mail or delivered to such courier service. Notices shall be sent to: For Tenant: For Owner: Fidelity Towers Inc. 7539 E. Stroh Road Parker, CO 80134 City of Waterloo Attn: Leisure Services Director 715 Mulberry Street Waterloo, IA 50703 The above addresses may be changed at any time by giving prior written notice as above provided. (1) This Agreement shall be construed in accordance with the laws of the state in which the Owner's Property is located. (m) Each party agrees to furnish to the other, within fourteen (14) days after request, such truthful estoppel information as the other may reasonably request. (n) Owner and Tenant each represent that a real estate broker or other agent in this transaction has not represented them. Each party shall indemnify and hold harmless the other from any claims for commission, fee or other payment by such broker or any other agent claiming to have represented a party herein. (o) Except as otherwise provided herein, Owner agrees to pay when due all taxes, charges, judgments, liens, claims, assessments, and/or other charges outstanding which are levied upon Owner or the Owner's Property and which are or in the future could become liens upon the Owner's Property, in whole or in any part (individually or collectively, "Liens"). Upon failure of the Owner to pay the Liens when due as provided above, Tenant at its option and upon thirty (30) days prior written notice to Owner, may pay said Liens. Tenant shall have the right to setoff and offset any sum so paid by Tenant and any and all costs, expenses and fees (including reasonable attorney's fees) incurred in effecting said payment, against Rents or against any other charges payable by Tenant to Owner under the terms of this Agreement. In the event that Tenant elects not to set off or offset the amounts paid by Tenant against Rents or in the event that the amounts paid by Tenant exceed the Rents payable to Owner for the then term of the Agreement, Owner shall reimburse Tenant for all amounts paid by Tenant (or not offset) immediately upon demand. Any forbearance by Tenant in exercising any right or remedy provided in this paragraph or otherwise afforded by law shall not be deemed a waiver of or preclude the later exercise of said right or remedy. Site Name: Waterloo, IA (p) Owner's recourse against any Leasehold Lender shall be expressly limited to such Leasehold Lender's interest in this Agreement. (The remainder of this page is intentionally left blank.) Site Name: Waterloo, IA IN WITNESS WHEREOF, the parties hereto b' d themselves to this Option and Land Lease Agreement effective as of the 10- - day of Y -L , 2011. OWNE City of By: aterloo, Iow / Title: Mayor_ Date: Notary Public:AQ' Acknowledged before me on l „� D , 2011, by Ernest G. Clark, as Mayor of the Ci of Waterloo, Iowa. blic, Sta of Iowa Leisure ServicCo , •.:..x�•on By: Title: Date: Acknowledged before me on / -i/ c 2011, By K i- El4ThS , Services Commission. ivotary Public; State of Iowa Chairperson as Chairperson of the Leisure 1A4 r s. TENANT: Fidelity Towers Inc. a Nevada corporation By: JEANE DIEHL COMMISSION NO. 733174 MY COMMISSION EXPIRES Name: Title: Date: Notary Public: Site Name: Waterloo, IA 300' 1, 1 i % , do hereby certify that Kle A. ver personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and seal this f �1 cs( , 2011. My Commission Explres 12/22/2013 Site Name: Waterloo, IA day of EXHIBIT "A" TO OPTION AND LAND LEASE AGREEMENT OWNER'S PROPERTY THE EAST 660 FEET OF THE SOUTH ONE-HALF OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 36, TOWNSHIP 89 NORTH, RANGE 13 WEST OF THE FIFTH PRINCIPAL MERIDIAN, IN THE CITY OF WATERLOO, BLACK HAWK COUNTY, IOWA, EXCEPT THOSE PARTS CONVEYED TO THE CITY OF WATERLOO, IOWA, IN 114 LD 503 AND 116 LD 457. Owner and Tenant agree that the precise legal description for the Owner's Property will be corrected, if necessary, and that Tenant may place the correct legal description on this Exhibit "A". Site Name: Waterloo, IA EXHIBIT "B" TO OPTION AND LAND LEASE AGREEMENT PREMISES a) Real property comprised of approximately two thousand.five hundred (2500) square feet of land b) Non — exclusive easement required to run utility lines and cables c) Non — exclusive easement across Owner's Property (hereinafter defined) for access SITE SKETCH: See attached Exhibit B-1. APPROVED Owner: APPROVED Tenant: (Initial) (Initial) Notes: 1. This Exhibit may be replaced by a land survey of the Premises at Tenant's sole cost and expense, together with non-exclusive easements for utility lines and cables to service the Premises, and a non-exclusive easement for ingress and egress across Owner's Property to the Premises. 2. Setback of the Premises from the Owner's Property lines shall be the distance required by the applicable governmental authorities. 3. Width of access road if any, shall be the width required by the applicable governmental authorities, including police and fire departments. Site Name: Waterloo, IA 02010 Westwood Profasebnal Services. Inc. soz VOTES: PV Na -002 SOUTH HALF OF THE SOUTHWEST QUARTER OF 7HE SOUTHWEST QUARTER 6�r L130R!*A1S1 mODr1a PT 13411134311N1314811102Fr 9 t ORANGE PARK PLEASANT VIEW ADDITION LEGA. DESCRIPTION OF PARENT PARCEL: The East 660 feet of the South One-half of the Southwest quarter of the Southwest Quarter of Section 31 Township 89 North, Range 13 (fest of the Fifth Rindpd Mrldia,5 he the City of Waterloo, Blair Hawk County: Iowa except those pats conveyed to the City of Waterlog Iowa, In 114 LD 503 and 116 LD 457. PROPOSED LEASE AREA: That part of the East 660 feet of the South Line -hath of the Southwest quarter of the Southwest Ourtr of Seaton 38 Tornshp 89 North, Range 13 West of the Filth P1Lhclpd Meridian, In the City of Waterloo, Black Hawk County, Iowa, described as followo - Commellcing at the Lntera cion of the east right-of-way Roe of Wast Eleventh Street and the north right -of -wary Roe of Eat Ridgeway Avenues Maw North 01 degrees 29 minutes 16 seconds West along sold eat right-of-way Rrta, a distance of 127.78 feet; Throe North 75 degrees 04 minutes 22 seconds bat o aflame of 18507 feet Them North 01 degrees 29 minutes 16 seconds Nest o dletonco of 129 feet to the point of beg6mhg; Mance cnthuhg North 01 degrees 29 minutes 16 seconds Wast, o disuse of 5000 feet Theis North 88 degrees 30 minutes 44 seconds Eat a distance 015000 feet Thence 5auth 01 degrees 29 mbwta 16 seconds East a distance of BOOB fest ?hence South 88 degrees 30 mimics 44 seconds West o distance of 5000 feet to the point of beginning, PROPOSED ACCESS AND UUUUTY EASEMENT: M easement for hgra" egress and utIty pvrpo. men under and across that part of the East 660 feet of the South One-half of the Southwest Water of the Southwest Quarter of Swam 35 LW Range 13 ssFifth Meridian, h the City of Waterloo, Black TownshipnINowa, as felons Commencing of the hteraeotkad of the eat right-of-way Ikon of Nest Eleventh Sheet and the oath right-of-way Bee o1 fast RJdgewoy Avenues Throe North 01 degrees 29 minutes 16 seconds West atom saki east right-of-way /No, o distance of 107.22 feet to the point of beghnhg Dance North 01 degrees 29 minutes 16 seconds W dang said east distance of het Thence North 75 dereees 04 motes 22 Fit c �ttance 01 18507 feet Thence North 01 degrees 29 Wraiths 16 arrnnds *eat o distance of 8.29 feet Thence North 88 degree 30 minutes 44 seconds East o distance of 4500 feet Them South 01 degrees 29 minutes 78 seconds East o distance of 7000 het Thence South 88 degrees 3D minutes 44 seconds Went o distance of 2500 het Throe South 01 degrees 29 minutes 16 seconds East o distance 015107 het Thence South 75 degrees 04 minutes 22 seconds West a d6stace of 20563 het to the point of beginning. SURVEYOR'S N07ER 7) this storey wan pfd using Sada Hawk Canty Abstract & Rte report dated July 26, 2010 at 7000 an. According to said report there are no easements upon the subject property 2)Fee Oars Board of Pok Comasstoners of the City of Waterloo, Iowa 3)SUbJeat property Is a.rently zoned R-2 (One dwhd tiro Foray Residential Dhbictk 4)The underground utilities drown have been located from Bald surrey information and existing drawings. the surveyor makes no guarantees that the dmdergroa d utilities shown comprise at such utfRfes in the area, either in servicer abandoned the smear farther does not warrant that that the underground utilities shown are DI the coda location indicated although he doesBet they am located as accuratelya pas.Bfe fisInformationcInformation.Tmgobl.. The surveyor has not physically � the underground stinks Site Address not mutable 6) Drawing Coordinate Zona Iowa Sate Plane Coordinates, Nath Zona NAD 1981 NI distances swan are grid Use Scale Factor a 1.000048703 to convert measurements to goad Vertical datum based on NAND 1688 published *dues per the NGS Geodetic Databases 7) As sealed from FETA Rood Mop Community Panel Number 1900250012$ doted ally 3rd 198$ the subject property appears to to within lone C areas of minimal flooding. 8) Accuracy tolerances for coordinate data depleted on this srvey are In compliance Nth FM IA reporting. 9) 7hls surrey does Is not o property awry', of the parent parcel as defined 1n Iowa Adtmhhtrotive Code 1936 Chapter 7f. LEGEND o eLmt/sHae ▪ CONFETERS DEE • DECIDUOUS TREE A4 WHAM • STEVE= Parr Ria-TRAr9C/ODER vs 96 -TRAFI$'/ODEA as 00 mit 0311 ora 7tAD TAPPED STALL )@ G PERC TEST o 9 740.10 10 NEL 51 CAERE TV Ray p EEL 16 was METER • STRUT LTE Err ORE d RORER PEE ® ELECTRIC BOX 61 0107 C ouzo B10778 HOME IM ammo 701ER ® SINOIRY AIAM10E ® SERER ague= ® Nom OITiz7 SASH ® 07)68 SAM a HARED END SERUM cgev7E E SI3ALE S70BN MINIpE 1111.17710AE cox TP7PHEE MANHOLE TRAFFIC SWIRLY ear HAM HOLE TR4770 LIGHT GATE IALIE b 7ra4ANr WATER MATER 0AE STOP 60X MATER 7ANrp£ --ov— GAS LAE --sae— 070 LME --awn— PplR SMEAR —nem POKER UNIER HOUND - sawn, arost - Snag awe —xw— 010303E OWAFM - 100303117003030.50 —ea— WATERMAN — — PALE LAZE - • - OEIDUas TREE 111E COMFEROUS TTEE LAE CURE of SUTER 1311911109 916A0E Bearings Ewen are based urn Iowa State Plane Coordinate System, North Zona NAD 81 Parent parcel boundary • Denotes found monument w Wellemeed 00100 raLmlowiDeA�ds H01126RRla1.201 lttleiLW0! WM masses Apt aagsOta 1610 100..0050. wwwwwWwoodrecow ssc 6500 W. 110th Street, Suite 300 Overland Park, Kansas 66210 Phone: 913-438-7700 Fax: 913-438-7777 Deemed Checked: prawic Record Drawing by/date: Revision annoyrdimaRI73.al�de�11.1�Or7- 4 4 ..d Ione blpyrp /ice on o d •r m°�o.o Nathan It. Car an . 12/10/2010..._ N._111_31 4 My Manse renewal date he 12/31/2010 Pages or attests covered by Ns seddk 1 Prepared for: Selective Site Consultants Overtand Park. Kansas 66210 Waterloo/Morris Park IA2001 Waterloo, Iowa 0' 40' 80 120' L Certificate of Survey 11/19/2010 201093IRl:ep ti OPTION AND LAND LEASE AGREEMENT This Option and Land Lease Agreement ("Agreement') entered into as of the date set forth on the signature page hereof, by and between City of Waterloo, Iowa, acting by and through the Leisure Services Commission, formerly known as the Board of Park Commissioners, whose address is City of Waterloo, Iowa City Hall, 715 Mulberry Street, Waterloo, Iowa 50703 ("Owner") and Fidelity Towers Inc., a Nevada corporation, whose address is 7539 East Stroh Road, Parker, CO 80134 ("Tenant"), provides for the granting and leasing of certain property interests on the following terms: For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. PROPERTY. Subject to the terms and conditions as provided herein, the property interests hereby leased and granted by Owner ("Premises") shall include the following: 1. Real property comprised of approximately Twenty-five hundred (2500) square feet of land 2. Non — exclusive easement required to run utility lines and cables 3. Non -- exclusive easement across Owner's Property (hereinafter defined) for access IN OR UPON THE Owner's real property ("Owner's Property") located near the intersection of East Ridgeway Avenue and W. 11th Street in Waterloo, Black Hawk County, State -of Iowa, which Owner's Property is otherwise identified as Parcel # 8913-36-353-002, and more particularly described on Exhibit "A" and the Premises which are more particularly described on Exhibit "B" both exhibits of which are attached hereto and incorporated herein by this reference as if fully set forth. 2. OPTION. In consideration of the sum of FIVE HUNDRED AND NO/100 DOLLARS ($500.00) (the "Option Money"), to be paid by Tenant to Owner within thirty (30) days of Tenant's execution of this Agreement, and subject to delivery of the Option Money, Owner hereby grants to Tenant the exclusive right and option (the "Option") to lease the Premises in accordance with the terms and conditions set forth herein. Tenant's obligation to pay the Option Money is contingent upon Tenant's receipt of a W-9 form setting forth the tax identification number or social security number of Owner, person or entity, to whom the Option Money is to be made payable as directed in writing by Owner. OPTION PERIOD. The Option may be exercised at any time within Twelve (12) months of the execution of this Agreement by all parties (the "Option Period"). At Tenant's election and upon Tenant's written notice to Owner and delivery of an additional payment of FIVE HUNDRED AND NO/100 DOLLARS ($500.00) to Owner prior to expiration of the Option Period, the Option Period may be further extended for an additional Twelve (12) months. The Option Period may be further extended by mutual written agreement of the parties at the same rate as set forth hereinabove. If Tenant fails to exercise the Option within the Option Period as it may be extended as provided herein, the Option shall terminate, and all rights and privileges granted hereunder shall be deemed surrendered. Owner shall retain all money paid for the Option, and no additional money shall be payable from either party to the other. Tenant shall not commence construction of the Communication Facility (as defined herein) before the Commencement Date (as hereafter defined). During the Option Period, Tenant may conduct Tests (as defined in Paragraph 5(0 below) on the Owner's Property. Upon the conclusion of the Tests, the Premises shall be returned to Owner in substantially similar condition as it was prior to the commencement of the Tests. CHANGES IN PROPERTY DURING THE OPTION PERIOD. If during the Option Period or any extension thereof, or during the term of this Agreement if the Option is exercised, Owner decides to sell, subdivide, or change the status of the zoning of the Premises or Owner's Property, Owner shall immediately notify Tenant in writing. Any sale of Owner's Property shall be subject to Tenant's rights under this Agreement. Owner agrees that during the Option Period or any extension thereof, or during the term of this Agreement if the Option is exercised, Owner shall not initiate or consent to any change in the zoning of Owner's Property or consent to any other restriction that would prevent or limit Tenant from using the Premises for the uses intended by Tenant as hereinafter set forth in this Agreement. Site Name: Waterloo, IA 3. TERM. The term of this Agreement shall be five (5) years commencing on the date ("Commencement Date") specified in Tenant's written notice to Owner that Tenant is exercising the Option, and terminating on the fifth annual anniversary of the Commencement Date (the "Term"), unless otherwise terminated as provided in Paragraph 16. In no event will the Commencement Date be any later than the date that Tenant begins construction of the Communications Facility (as such term is defined in Paragraph 5 below). Tenant shall have the right to extend the Term for five (5) successive five (5) year periods (each a "Renewal Term" and collectively the "Renewal Terms") on the same terms and conditions as set forth herein. This Agreement shall automatically be extended for each successive Renewal Tenn unless Tenant notifies Owner, in writing, of its intention not to renew prior to commencement of the succeeding Renewal Tenn. 4. RENT. (a) Tenant shall pay to Owner an annual lease fee of NINE THOUSAND SIX HUNDREDAND 00/100 DOLLARS ($9,600.00) ("Rent") in monthly payments of EIGHT HUNDRED AND 00/100 DOLLARS ($800.00) commencing on the Commencement Date and on the first day of each month thereafter. If the obligation to pay Rent commences or ends on a day other than the first day of the month, then the Rent shall be prorated for that month. The Rent shall increase by Fifteen Percent (15%) with each Renewal Term. The first Rent payment shall be delivered within twenty (20) business days of the Commencement Date. 5. USE. (a) Subject to the terms and conditions of this Agreement and only after the Option to lease the Premises is exercised, Tenant may use the Premises for the purpose of constructing, installing, removing, replacing, maintaining and operating a communications facility subject to such modifications and alterations as required by Tenant (collectively, the "Communications Facility"), provided that Tenant shall not be required to occupy the Premises. The Communications Facility may include, without limitation, a tower, antenna arrays, dishes, cables, wires, temporary cell sites, equipment shelters and buildings, electronics equipment, generators, and other accessories. Owner shall provide Tenant with twenty four (24) hour, seven (7) day a week, year-round access to the Premises. Tenant shall construct a fence around the Premises subject to the zoning and building permit requirements of the governing municipality. Tenant agrees to comply with all applicable governmental Iaws, rules, statutes and regulations, relating to its operation, construction and use of the Communications Facility on the Premises. Tenant shall be responsible for maintaining any access road to the Premises. Tenant shall have the right to park its vehicles on Owner's Property within fifty (50) feet of and immediately adjacent to the Premises when Tenant is constructing, removing, replacing, and/or servicing its Communications Facility, provided that Tenant remedies any damage caused by such vehicles. (b) The Communications Facility and all modifications, repairs and maintenance shall be constructed to industry standards and in a workmanlike manner, in accordance with this Agreement. (c) Tenant shall make proper arrangements for receiving, handling, storage and installation of its equipment and other personal property. Owner shall not be liable for any loss, damage or injury to properties of any kind that are shipped or otherwise delivered to or stored in or on the Premises or Owner's Property, except to the extent caused by the gross negligence or willful misconduct of Owner, its employees, agents, or contractors. Owner shall assume no responsibility for losses suffered by Tenant, its agents, employees or invitees, which are occasioned by theft except to the extent such loss, damage or injury is caused by the gross negligence or willful misconduct of Owner, its employees, agents, or contractors. (e) Owner shall timely pay all real property taxes and assessments against the Owner's Property. Tenant shall pay any increase in real property taxes, directly or via reimbursement to Owner, attributed to the Premises and any of the improvements thereon within thirty (30) days of receipt from Owner of a copy of said tax bill evidencing such an increase. Tenant shall pay all personal property taxes attributed to the Premises and any improvements thereon. (f) During the Option Period, Tenant, its agents and contractors, are hereby granted the right, at Tenant's sole cost and expense, to enter upon the Owner's Property and conduct such studies, as Tenant deems necessary to determine the Premises' suitability for Tenant's intended use. These studies. may include surveys, soil tests, environmental evaluations, radio wave propagation measurements, field strength tests and such other analyses and studies, as Tenant deems necessary or desirable (collectively, the "Tests"). Tenant shall not be liable to Owner or any third party an account of any pre-existing defect or condition on or with respect to Owner's Property, whether or not such defect or condition is disclosed by the Tests. Following completion of any testing activities, Tenant shall restore the Premises as nearly as possible to its previous condition. (g) Throughout the term of this Agreement, Owner shall cooperate with Tenant and execute all documents required to permit Tenant's intended use of the Premises in compliance with zoning, land use, utility service, and for building regulations. Notwithstanding any contrary statement in this paragraph or this Site Name: Waterloo, IA Agreement, Tenant acknowledges that Owner is a governmental authority possessing regulatory power with respect to certain project approvals and that in reviewing or taking action upon any request for approval Owner will not extend to Tenant any special consideration that is not generally made available to any other party making a substantially similar request for approval. Subject to the foregoing, Owner shall not take any action that would adversely affect Tenant's obtaining or maintaining any governmental approval. Owner agrees to cooperate promptly and in good faith with any request from Tenant relating to making such filings and taking such actions as are necessary to obtain any desired zoning, land use approvals and/or building permits required for Tenant's intended use of the Premises. 6. SUBLEASING. Tenant has the right to sublease any portion of the Premises during the Tenn and Renewal Terms of this Agreement, without Owner's consent, subject to the following conditions (i) the term of the sublease may not extend beyond the Term and any Renewal Terms of this Agreement, (u) all subleases are subject to all the terms, covenants, and conditions of this Agreement, and (iii) all subleases shall require that antennas and equipment placed on the tower do not increase its overall height or diameter . Any sublease not meeting these aforementioned criteria shall require Owner's consent, prior to installation of antennas and equipment. It is contemplated that all subleases shall be of the right to affix antennas and related equipment on the tower, and not of the right to erect any additional tower on the Premises. 7. ASSIGNMENT. (a) Tenant shall have the right to freely assign or transfer its rights under this Agreement, in whole or in part, to its holding company, or any company that acquires substantially all of Tenant's assets, at any time, without Owner's consent. Tenant shall have the right to assign or transfer its rights under this Agreement, in whole or in part, to any person or any business entity at any time, upon prior written consent of Owner, which shall not be unreasonably withheld. After delivery by Tenant of an instrument of assumption by an assignee that assumes all of the obligations of Tenant under this Agreement to Owner, Tenant will be relieved of all liability thereafter accruing after the date of such assignment. (b) Tenant may assign, pledge, mortgage or otherwise encumber its interest in this Agreement to any third party (a "Leasehold Lender") as security for any loan to which Owner hereby consents to without requirement of further evidence of such consent. The Leasehold Lender may secure its interest in such a loan by Tenant's grant of (i) a leasehold mortgage and assignment of rents, leases, contracts, etc. (the "Leasehold Mortgage") encumbering all of Tenant's interest in this Agreement and the Premises; (ii) a security agreement and other security documents (the "Security Agreements") that will encumber and grant a security interest in all of Tenant's now or hereafter existing tangible or intangible personal property located on, derived from, or utilized in connection with the Premises and the Agreement (collectively the "Personal Property"). 1. Successors. Any Leasehold Lender under any note or loan secured by a Leasehold Mortgage or deed of trust lien on Tenant's interest (or any successor's interest to Tenant's interest) who succeeds to such interest by foreclosure, deed in lieu of foreclosure, or otherwise, may take title to and shall have all of the rights of Tenant under this Agreement including the right to exercise any renewal option(s) or purchase option(s) set forth in this Agreement, and to assign this Agreement as permitted hereunder. 2. Default Notice. Owner shall deliver to the initial Leasehold Lender and any subsequent Leasehold Lender(s) (for such subsequent Leasehold Lender(s) at the address as Tenant or Leasehold Lender shall affirmatively inform Owner by written notice hereof) a copy of any default notice given by Owner to Tenant under this Agreement. No default notice from Owner to Tenant shall be deemed effective against the Leasehold Lender unless sent to the notice address for Leasehold Lender (if provided to Owner as set forth herein) or as amended from time to time. 3. Notice and Curative Rights. If Tenant defaults on any monetary obligations under this Agreement then Owner shall accept a cure thereof by the Leasehold Lender within thirty (30) days after Leasehold Lender's receipt of written notice of such default. For non -monetary defaults, Owner will not terminate this Agreement for so long as Leasehold Lender is diligently pursuing a cure of the default, provided such period of time shall not exceed sixty (60) days without Owner's prior written consent, and if curing such non -monetary default requires possession of the Premises then Owner agrees to give the Leasehold Lender a reasonable period of time to obtain possession of the Premises and to cure such default. 4. No Amendment. This Agreement may not be amended in any respect which would be reasonably likely to have a material adverse effect on Leasehold Lender's interest therein and this Agreement will not be surrendered, terminated or cancelled either (i) by Tenant without the prior written consent of the Leasehold Lender, or (ii) by Owner without prior written notice to the Leasehold Lender as provided for herein. Site Name: Waterloo, IA 5. New Lease. If this Agreement is terminated for any reason or otherwise rejected in bankruptcy then Owner may enter into a new lease with Leasehold Lender (or its designee) on the same terms as this Agreement as long as Leasehold Lender pays all past due amounts and cures any other non -monetary default under this Agreement within thirty (30) calendar days of notice of such termination. 6. Subordination. Owner may, in its sole discretion, agree that all right, title and interest of the Owner in and to any collateral encumbered by the Leasehold Mortgage or Security Agreements in favor of Leasehold Lender, may be subordinated and made subject, subordinate and inferior to the lien and security interest of the Leasehold Mortgage and Security Agreements, which subordination shall remain in effect for any modifications or extensions of the Leasehold Mortgage and Security Agreements. 7. Leasehold Lender/Third Party Beneficiary. Any Leasehold Lender shall be considered a third party beneficiary of the terms and conditions of this Agreement. 8. Notice. Notices to Leasehold Lender shall be sent to such address as provided to Owner by Tenant from time to time and as may be amended from time to time by written notice to Owner from Tenant. 8. TRANSFER WARRANTY. During the term of this Agreement, Owner covenants and agrees that it will not grant, create, or suffer any claim, lien, encumbrance, easement, restriction, or other charge or exception to title to the Owner's Property and the Premises that adversely affects Tenant's rights under this Agreement. Upon Tenant's prior written consent, Owner may sell, lease, transfer, grant a perpetual easement or otherwise convey all or any part of the Owner's Property to a transferee and such transfer shall be under and subject to this Agreement and all of Tenant's rights hereunder. It is agreed that in no event will Owner allow any sale, lease, transfer, or grant of easement that adversely affects Tenant's rights under this Agreement. 9. UTILITIES. Tenant shall have the right, at its sole expense, to install or improve utilities servicing Owner's Property (including, but not limited to, the installation of emergency power generators, power lines and utility poles). Payment for electric service and for telephone or other communication services to the Communications Facility shall. be Tenant's sole responsibility. At no cost or expense to Owner, Owner agrees to cooperate with Tenant in its efforts to obtain, install and connect the Communications Facility to existing utility service at Tenant's expense. Notwithstanding the foregoing, Tenant shall secure its own metered electrical supply. To the greatest extent feasible, power lines and other utilities to serve the Communications Facility will be located underground. 10. OWNERSHIP OF COMMUNICATIONS FACILITY. All portions of the Communication Facility will be and remain Tenant's personal property and, at Tenant's option, may be removed by Tenant at any time during the Tenn or any Renewal Term. Owner covenants and agrees that no part of the Communication Facility constructed, erected or placed on the Premises by Tenant will become, or be considered as being affixed to or a part of Owner's Property, it being the specific intention of the Owner that all improvements of every kind and nature constructed, erected or placed by Tenant on the Premises will be and remain the property of the Tenant and may be removed by Tenant at any time during the Term or any Renewal Term. 11. MAINTENANCE. Tenant will use best efforts to maintain the Premises in good condition and state of repair. Except insofar as Tenant is made responsible by this Agreement, Owner will maintain the Owner's Property surrounding the Premises in good condition and state of repair. 12. REMOVAL OF COMMUNICATIONS FACILITY. Upon written request of Owner, to be given within ten (10) days of the expiration or earlier termination of this Agreement, or at Tenant's option, above -ground improvements, including but not limited to all personal property and trade fixtures of Tenant, specifically including the tower, fences, concrete pads and buildings, as well as any foundation down to a depth of four (4) feet below grade level shall be removed by Tenant within sixty (60) days after the expiration or earlier termination of this Agreement, and Tenant, at its sole expense, shall restore Owner's Property as nearly as possible to its condition before construction of Tenant's improvements. If Tenant's personal property and trade fixtures are not removed within sixty (60) days after expiration or termination of this Agreement, said property will be deemed to be abandoned and will become the property of Owner. Following abandonment, Tenant shall be liable for all costs incurred by Owner to dismantle, demolish or remove Tenant's improvements as set forth above. Site Name: Waterloo, IA 13. INSURANCE. Tenant shall maintain commercial general liability insurance insuring Tenant against liability for personal injury, death or damage to personal property arising out of use of the Premises by Tenant or any agent or independent contractor of Tenant, with combined single limits of One Million Dollars ($1,000,000). Certificates or copies of said policies, naming Owner as an additional insured, and providing for thirty (30) days' advance notice to Owner before cancellation, shall be delivered to Owner no later than the Commencement Date. A renewal certificate shall be provided to Owner prior to expiration of any policy. 14. CONDITION OF PROPERTY. Owner represents, to the best of its knowledge that the Owner's Property and all improvements thereto, if any, are in compliance with all building, life/safety, and other laws of any governmental or quasi -governmental authority. The parties agree that Owner shall have no responsibility to prepare the Property in any way for Tenant's use. It is currently contemplated that no trees will need to be removed to allow construction and operation of the Communications Facility, and in no event will any trees be removed without the prior written consent of Owner. 15. TERMINATION BY TENANT. Tenant may terminate this Agreement at any time, in its sole discretion by giving written notice thereof to Owner not less than thirty (30) days prior to the Commencement Date. Further, this Agreement may be terminated by Tenant immediately, at any time, upon giving written notice to Owner, if (a) Tenant cannot obtain all governmental certificates, permits, leases or other approvals (collectively, "Approvals") required and/or any easements required from any third party, or (b) any Approval is canceled, terminated, expired or lapsed, or (c) Owner fails to deliver any required non -disturbance agreement or subordination agreement, or (d) Owner breaches a representation or warranty contained in this Agreement and such breach is not cured within thirty (30) days of written notice from Tenant to Owner, or (e) Owner fails to have proper ownership of the Owner's Property and/or authority to enter into this Agreement, or (f) Tenant determines that the Owner's Property contains substances of the type described in Section 18 of this Agreement and such substances were not the result of Tenant's use of the Property, or (g) Tenant determines that the Premises is not appropriate for its operations for economic, environmental or technological reasons. 16. INDEMNITY. Owner and Tenant hereby agree to indemnify and defend each other against, and to hold harmless each other from, any and all costs (including reasonable attorney's fees and expenses) and claims, actions, damages, obligations, liabilities and liens which arise out of (a) the breach of this Agreement by the indemnifying party; and (b) the use and/or occupancy of the Premises, or the balance of the Owner's Property, by such indemnifying party. This indemnity shall not apply to any claims, actions, damages, obligations, liabilities and liens arising from any negligent acts or omissions or intentional misconduct of the indemnified party and shall survive the termination of this Agreement. These provisions of the Agreement relating to indemnification shall survive any termination or expiration of this Agreement. 17. HAZARDOUS SUBSTANCES. Owner represents that to the best of its knowledge there is no substance, chemical, or waste on the Owner's Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. Owner shall hold Tenant harmless from and indemnify Tenant against any damage, loss, expense, response costs, or liability, including consultant fees and attorneys' fees resulting from the presence of hazardous substances on, under or around the Owner's Property or resulting from hazardous substances being generated, stored, disposed of or transported to, on, under, or around the Owner's Property as long as the hazardous substances were not generated, stored, disposed of, or transported by Tenant or its employees, agents or contractors. Owner and Tenant agree that each will be responsible for their respective compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene condition or other matters as may now or at any time hereafter be in effect, that are now or were related to that party's activity conducted in or on the Owner's Property. Owner and Tenant shall hold each other harmless from and indemnify and defend each other against any damage, loss, expense, response costs, or liability, including reasonable consultant fees and attorneys' fees resulting from the indemnifying party's failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or matters as may now or hereafter be in effect. Site Name: Waterloo, IA 18. CASUALTY/CONDEMNATION. (a) If any portion of the Owner's Property or Communication Facility is damaged by any casualty and such damage adversely affects Tenant's use of the property, or if a condemning authority takes any portion of the Owner's Property and such taking adversely affects Tenant's use of the Owner's Property, this Agreement shall terminate as of the date of casualty or the date the title vests in the condemning authority, as the case may be if Tenant gives written notice of the same within thirty (30) days after Tenant receives notice of such casualty or taking. The parties shall be entitled to make claims in any condemnation proceeding for value of their respective interests in the Property (which for Tenant may include, where_ applicable, the value of the Communications Facility, moving expenses, prepaid Rents, and business dislocation expenses). Sale of all or part of the Owner's Property including the Premises to a purchaser with the power of eminent domain in the face of the exercise of the power shall be treated as a taking by condemnation. (b) Notwithstanding anything in this Agreement to the contrary, in the event of any casualty to or condemnation of the Premises or any portion thereof during such time as any Leasehold Mortgage shall remain unsatisfied, the Leasehold Lender shall be entitled to receive all insurance proceeds and/or condemnation awards applicable to the Premises (up to the amount of the indebtedness secured by the Leasehold Mortgage) otherwise payable to Tenant and apply them in accordance with the Leasehold Mortgage and shall have the right, but not the obligation, to restore the Premises. 19. LIENS. Neither Tenant, nor anyone claiming by, through or under Tenant, shall have the right to place any lien, mortgage or encumbrance upon the Premises during the Term or any Renewal Term of this Agreement, except as provided by Section 7. If any such lien, mortgage or encumbrance, except as provided by Section 7, is placed on the Premises, Tenant shall promptly undertake such action as is necessary to have it released or removed. 20. QUIET ENJOYMENT. Tenant, upon payment of the Rent, shall peaceably and quietly have, hold and enjoy the Premises. If, as of the date of execution of this Agreement or hereafter, there is any mortgage, or other encumbrance affecting Owner's Property, then Owner agrees to use its best efforts to obtain from the holder of such encumbrance a Non -Disturbance and Attomment Agreement that Tenant shall not be disturbed in its possession, use, and enjoyment of the Premises, provided it is not in default of the Agreement. Owner shall not cause or permit any use of Owner's Property that interferes with or impairs the quality of the communication services being rendered by Tenant from the Premises. Owner shall not grant any other person or entity the right to operate a wireless communication facility on Owner's Property without the express written consent of Tenant. Except in cases of emergency threatening life and/or personal property, Owner shall not have access to the Premises unless accompanied by Tenant personnel. 21. DEFAULT. Except as expressly limited herein, Owner and Tenant shall each have such remedies for the default of the other party hereto, as may be provided at Iaw or equity and including the right to terminate this Agreement, following written notice of such default described in reasonable detail with a demand to cure and failure to cure the same within thirty (30) days. For non -monetary defaults, Owner will not terminate this Agreement for so long as Tenant is diligently pursuing a cure of the default provided such period of time shall not exceed sixty (60) days from receipt by Tenant of notice and demand to cure. If, pursuant to the provisions of this Agreement or as a matter of law, Owner shall have the right to terminate this Agreement, then (a) Owner shall take no action to terminate the Agreement without first giving to the Leasehold Lender written notice of such right, a description of the default in reasonable detail, and a reasonable time thereafter not to exceed sixty (60) days from the receipt of such notice, (i) in the case of a default susceptible of being cured by the Leasehold Lender, to cure such default or (ii) in the case of a default not so susceptible of being cured by the Leasehold Lender, to institute, prosecute and complete foreclosure proceedings to otherwise acquire Tenant's interest under this Agreement; provided however, that the Leasehold Lender shall not be obligated to continue such possession or continue such foreclosure proceedings after such default shall have been cured, and (b) absent a Leasehold Lender, Owner may only exercise its right to terminate by providing written notice of termination to Tenant. 24. ESTOPPEL CERTIFICATES. Owner shall from time to time, within fourteen (14) days after receipt of request by Tenant, deliver a written statement addressed to Tenant or any Leasehold Lender certifying: (a) that this Agreement is unmodified and in full force and effect (or if modified that this Agreement as so modified is in full force and effect); Site Name: Waterloo, IA (b) that the agreement attached to the certificate is a true and correct copy of this Agreement, and all amendments hereto; (c) that to the knowledge of Owner, Tenant has not previously assigned or hypothecated its rights or interests under this Agreement, except as described in such statement with as much specificity as Owner is able to provide; (d) the term of this Agreement and the Rent then in effect and any additional charges; (e) the date through which Tenant has paid the Rent; (t that Tenant is not in default under any provision of this Agreement (or if in default, the nature thereof in detail) and a statement as to any outstanding obligations on the part of Tenant and Owner; and (g) such other matters as are reasonably requested by Tenant. Without in any way limiting Tenant's remedies which may arise out of Owner's failure to timely provide an estoppel certificate as required herein, Owner's failure to deliver such certificate within such time shall be conclusive (i) that this Agreement is in full force and effect, without modification except as may be represented by Tenant; (ii) that there are no uncured defaults in Tenant's or Owner's performance hereunder; and (iii) that no Rent for the then current month, has been paid in advance by Tenant. 25. SEVERABILITY. If any section, subsection, term or provision of this Agreement or the application thereof to any party or circumstance will, to any extent, be invalid or unenforceable, the remainder of the section, subsection, term or provision of the Agreement or the application of same to parties or circumstances other than those to which it was held invalid or unenforceable, will not be affected thereby and each remaining section, subsection, term or provision of this Agreement will be valid or enforceable to the fullest extent permitted by law. 26. INTERPRETATION. Each party to this Agreement and its counsel have reviewed and had the option to revise this Agreement. The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or of any amendments or exhibits to this Agreement. 27. MISCELLANEOUS (a) Owner represents and warrants that Owner has full authority to enter into and sign this Agreement and has good and indefeasible fee simple title to the Owner's Property. The person executing on behalf of Owner represents individually that such person has the authority to execute this Agreement on behalf of Owner. (b) Tenant warrants and represents that it is duly authorized to do business in the state in which the Premises is located and that the undersigned is fully authorized by Tenant to enter into this Agreement on behalf of Tenant. (c) This Agreement supersedes all prior discussions and negotiations and contains all agreements and understandings between the Owner and Tenant. A writing signed by both parties may only amend this Agreement. (d) The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of that provision by the same party, or of any other provision or condition of the Agreement. (e) The headings of sections and subsections are for convenient reference only and will not be deemed to limit, construe, affect, modify or alter the meaning of the sections or subsections. (1) Time is of the essence of Owner's and Tenant's obligations under this Agreement. Site Name: Waterloo, IA (g) The parties may sign this Agreement in counterparts hereto. (h) The terms and conditions of this Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of Owner and Tenant. (i) The prevailing party in any action or proceeding in court to enforce the terms of this Agreement shall be entitled to receiveits reasonable attorneys' fees and other reasonable enforcement costs and - expenses from the non -prevailing party. (j) Owner shall execute and acknowledge and deliver to Tenant for recording a Memorandum of this Agreement ("Memorandum") upon Tenant's reasonable request to properly memorialize and give notice of this Agreement in the public records. Tenant will record such Memorandum at Tenant's sole cost and expense. (k) Rent payments and notices, requests, and other communication shall be in writing and sent by United States Mail, postage prepaid, certified or registered with return receipt requested or by any nationally recognized overnight courier service to the address set forth beneath the signature of each party below. Any such notice shall be deemed given when deposited in the United States Mail or delivered to such courier service. Notices shall be sent to: For Tenant: For Owner: Fidelity Towers Inc. 7539 E. Stroh Road Parker, CO 80134 City of Waterloo Attn: Leisure Services Director 715 Mulberry Street Waterloo, IA 50703 The above addresses may be changed at any time by giving prior written notice as above provided. (1) This Agreement shall be construed in accordance with the laws of the state in which the Owner's Property is located. (m) Each party agrees to furnish to the other, within fourteen (14) days after request, such truthful estoppel information as the other may reasonably request. (n) Owner and Tenant each represent that a real estate broker or other agent in this transaction has not represented them. Each party shall indemnify and hold harmless the other from any claims for commission, fee or other payment by such broker or any other agent claiming to have represented a party herein. (o) Except as otherwise provided herein, Owner agrees to pay when due all taxes, charges, judgments, liens, claims, assessments, and/or other charges outstanding which are levied upon Owner or the Owner's Property and which are or in the future could become liens upon the Owner's Property, in whole or in any part (individually or collectively, "Liens"). Upon failure of the Owner to pay the Liens when due as provided above, Tenant at its option and upon thirty (30) days prior written notice to Owner, may pay said Liens. Tenant shall have the right to setoff and offset any sum so paid by Tenant and any and all costs, expenses and fees (including reasonable attorney's fees) incurred in effecting said payment, against Rents or against any other charges payable by Tenant to Owner under the terms of this Agreement. In the event that Tenant elects not to set off or offset the amounts paid by Tenant against Rents or in the event that the amounts paid by Tenant exceed the Rents payable to Owner for the then term of the Agreement, Owner shall reimburse Tenant for all amounts paid by Tenant (or not offset) immediately upon demand. Any forbearance by Tenant in exercising any right or remedy provided in this paragraph or otherwise afforded by law shall not be deemed a waiver of or preclude the later exercise of said right or remedy. Site Name: Waterloo, IA (p) Owner's recourse against any Leasehold Lender shall be expressly limited to such Leasehold Lender's interest in this Agreement. (The remainder of this page is intentionally left blank.) Site Name: Waterloo, IA IN WITNESS WHEREOF the parties hereto bin themselves to this Option and Land Lease Agreement effective as of the 6 day of 2011. OWNER City of�? aterloo, o B b� Title: �eMaayor_ Date: T° t 5 a 20(i Notary Public: Acknowledged before me on Ernest G. Clark, as Mayor of the C. Leisure Services Commission BY: Title: Chairperson Date: Acknowledged before me on , 2011, By as Chairperson of the Leisure Services Commission. Notary Public, State of Iowa TENANT: Fidelity Towers Inc. a Nevada corporation By: Name: Title: Date: Notary Public: Site Name: Waterloo, IA Jo hp VI `ootaalub, :aUreN al!S 110Z ` MI leas pUR pueq AU SSU •2uotun.nsut 2uioaaaoj map uognoaxa anp alp pa2poimou m pue ,Sup spp aux aio;aq paseadde dfeuosiad Tip 4p.loo Agaiaq op ` 1 e EXHIBIT "A" TO OPTION AND LAND LEASE AGREEMENT OWNER'S PROPERTY THE EAST 660 FEET OF THE SOUTH ONE-HALF OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 36, TOWNSHIP 89 NORTH, RANGE 13 WEST OF THE FIFTH PRINCIPAL MERIDIAN, IN THE CITY OF WATERLOO, BLACK HAWK COUNTY, IOWA, EXCEPT THOSE PARTS CONVEYED TO THE CITY OF WATERLOO, IOWA, IN 114 LD 503 AND 116 LD 457. 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