HomeMy WebLinkAboutCelltelco-10/19/1998 Ground Lease Agreement '= Vis,,:
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Prepared David Hughes,UNITED STATES CELLULAR CORP.,
Attn:Real Estate,5975 Rockwell Drive N.E.,Cedar Rapids,IA 52402,(319)560-5000
Space above line for Recorder.
Site No. 305307
GROUND LEASE
This Lease is made and entered into the 1st day of November, 1998, by and between The City
of Waterloo, 715 Mulberry Street, Waterloo, IA 50703, hereinafter referred to as "Lessor," and
Waterloo/Cedar Falls CELLTELCO Partnership, a Washington D.C. General Partnership,
doing business as United States Cellular® Wireless Communications, Attn: Real Estate, 8410
West Bryn Mawr Avenue, Suite 700, Chicago, IL 60631, hereinafter referred to as "Lessee."
In consideration of the mutual promises, conditions, and other good and valuable consideration of
the parties hereto, it is covenanted and agreed as follows:
1. Demise of Leasehold Parcel. Lessor hereby lets and demises unto Lessee, and Lessee
hereby receives and accepts from Lessor,the following described Leasehold Parcel:
Approximate dimensions: 30'x 40'
Approximate acreage: 1200 square feet
Location: As per site plan attached hereto as Exhibit A, which is hereby incorporated by
reference, in Black Hawk County, State of Iowa.
2. Grant of Easement Parcel(s). Unless the Leasehold Parcel is immediately adjacent to
public rights-of-way for ingress, egress, and utilities, Lessor hereby grants to Lessee the following
described Easement Parcel(s) appurtenant to the Leasehold Parcel:
Use: Access.
Width: 20'; Approximate length: As needed per survey between the Leasehold Parcel and the
public road known as Texas Road over existing traveled ways where practical, and establishing a
new route as necessary.
Use: Utilities.
Width: 10'; Approximate length: As needed per survey between the Leasehold Parcel and suitable
utility company service connection points. Lessor agrees to make such direct grants of easement
as the utility companies may require.
3. Grant of Easement Rights. To effect the purposes of this Lease, Lessor hereby grants to
Lessee the following Easement Rights: (a) the right to clear vegetation, cut timber, and move
earthen materials upon the Easement Parcels; (b) the right to improve an access road within the
Access Easement Parcel; (c) the right to place utility lines and related infrastructure within the
Utilities Easement Parcel; (d) the right to enter and temporarily rest upon Lessor's adjacent lands
for the purposes of installing, repairing, replacing, and removing the leasehold improvements
(the "Improvements") and any other personal property of Lessee upon the Leasehold Parcel and
improving the Easement Parcels, including the right to bring in and use all necessary tools and
machinery; and (e) the right of pedestrian and vehicular ingress and egress to and from the
Leasehold Parcel at any time over and upon the Access Easement Parcel. The Leasehold Parcel
and Easement Parcels are collectively referred to herein as the "Premises."
4. Survey / Site Plan. Lessee may, at Lessee's expense, cause a survey, site plan, and/or
legal description of the Premises to be prepared, to further delineate and identify the land
underlying the Premises.
5. Use of the Premises. Lessee shall be entitled to use the Premises to construct, operate,
modify as necessary, and maintain thereon a communications antenna tower (including aviation
hazard lights when required), an access road, one or more equipment buildings, and a security
fence, together with all necessary lines, anchors, connections, devices, and equipment for the
transmission, reception, encryption, and translation of voice and data signals by means of radio
frequency energy and landline carriage.
6. Term of Lease. This Lease shall commence on the first day of November, 1998, and
shall expire twenty-five (25) years thereafter on October 31, 2023.
7. Option to Renew. Lessee shall have the option to renew this Lease for up to four (4)
additional terms of five (5)years each, upon a continuation of all the same provisions hereof, by
giving written notice to Lessor of Lessee's exercise of this option at least sixty (60) days before
the expiration of the term then present at the time of such notice.
8. Option to Terminate. Lessee shall have the unilateral right to terminate this Lease at any
time by giving written notice to Lessor of Lessee's exercise of this option and paying Lessor the
amount of Zero Dollars ($0.00) as liquidated damages.
9. Compensation. Lessee shall pay to Lessor a one-time fee in the amount of Forty
Thousand Dollars ($40,000) for the rights to said lease parcel for the term of lease as stated in
Section 6, herein. In addition, Lessee agrees to pay to Lessor a one-time fee in the amount of
Two Thousand Dollars ($2,000.00) for additional landscaping. If Lessee exercises the options to
renew as stated in Section 7 herein, Lessee agrees to pay Lessor a one-time fee of Ten Thousand
Dollars ($10,000.00) for each renewal period as stated in Section 7,herein.
10. Possession of Premises. Lessee shall not be entitled to take possession of the Premises
and commence work to construct the Improvements until Lessee makes a payment of
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compensation. Lessee shall, however, be permitted to enter upon the Premises to cause
engineering studies to be made with respect thereto, including surveys, soil tests, radio wave
propagation and field strength tests, and such other analyses and studies of the Premises as
Lessee determines to be necessary or desirable without being deemed to have taken possession.
11. Utilities. Lessee shall solely and independently be responsible for all costs of providing
utilities to the Premises, including the separate metering, billing, and payment of utility services
consumed by Lessee's operations.
12. Property Taxes.
(a) Lessee shall pay the personal property taxes levied against the Improvements and the real
estate taxes levied against the land underlying the Leasehold Parcel. If the classification of the
land for tax purposes changes as a result of Lessee's commercial use, then Lessee shall be
responsible for increases attributable to such commercial use. Increases in property values
reflected in Lessor's property tax bill received after the first assessment date following Lessee's
completion of construction shall be deemed to best indicate the impact attributable to Lessee.
(b) Although Lessee will be receiving a separate tax bill for its personal property, the parties
assume that the Leasehold Parcel will not be eligible for a separate
assessor's parcel number. Therefore, Lessee shall contribute to the payment of real estate taxes
on the underlying land promptly following Lessor's demand therefor, provided that Lessee's
proportionate share shall be computed as follows: Area of Leasehold Parcel, divided by area of
total tract shown on tax bill, times total tax attributable to land only. The parties agree to
cooperate in good faith to identify the portion of Lessor's property tax increases for which Lessee
is fairly responsible, and Lessee agrees to subsidize such increases.
(c) Lessor's requests to Lessee for contribution or reimbursement of property taxes should be
addressed to USCe1I, P.O. Box 31369, Chicago, IL 60631-0369. All requests must be
accompanied by a copy of Lessor's tax bill. Lessee shall comply with requests for contribution
by issuing a check for Lessee's proportionate share made payable to the tax collector. Lessee
shall comply with requests for reimbursement by issuing a check to Lessor, provided that a paid
tax receipt accompanies such request.
(d) Lessee shall have the right, but not the obligation, to pay Lessor's real estate taxes on the
underlying land if the same become delinquent, to ensure that Lessee's leasehold interest does
not become extinguished. Lessee shall be entitled to take a credit against rent for the portion of
Lessor's taxes which it was not Lessee's obligation to pay, as such amount shall reasonably be
substantiated.
13. Repairs. Lessee shall be responsible for all repairs of the Improvements, and may at its
own expense alter or modify the Improvements to suit its needs consistent with the intended use
of the Premises.
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14. Mutual Indemnification. Lessee shall indemnify and hold Lessor harmless from and
against any loss, damage, or injury caused by, or on behalf of, or through the fault of the Lessee,
or in any way resulting from Lessee's presence upon the Premises. Lessor shall indemnify and
hold Lessee harmless from and against any loss, damage, or injury caused by, or on behalf of, or
through the fault of the Lessor. Nothing in this Article shall require a party to indemnify the
other party against such other party's own willful or negligent misconduct.
cf- u(w iti htiAtict
15. Insurance. Lessee shall continuously maintair .in full force and effec a policy of
commercial general liability insurance with limits of Million Dollars ( ,000 000.00) ,g '
45
covering Lessee's work and operations upon Lessor's lands.71f'..AV "` ."`'s' t /;11q
16. Monetary Default. Lessee shall be in default of this Lease if Lessee fails to make a
payment of compensation when due and such failure continues for fifteen (15) days after Lessor
notifies Lessee in writing of such failure.
17. Opportunity to Cure Non-Monetary Defaults. If Lessor or Lessee fails to comply with
any non-monetary provision of this Lease which the other party claims to be a default hereof, or
if Lessee violates any provision of this Lease or any law which materially affects this Lease, the
party making such claim shall serve written notice of such default upon the defaulting party,
whereupon a grace period of 30 days shall commence to run during which the defaulting party
shall undertake and diligently pursue a cure of the default. Such grace period shall automatically
be extended for an additional 30 days, provided the defaulting party makes a good faith showing
that efforts toward a cure are continuing.
18. Assignment of Lease by Lessee. This Lease and the Premises hereunder shall be freely
assignable by the Lessee to any other party without the necessity of obtaining Lessor's consent.
Lessee's right to effect an outright transfer of the Premises, and the right of any collateral
assignee to seize the Premises as defaulted security, is subject only to the limitation that the
Premises shall be used for the purposes permitted herein. Lessee shall notify Lessor in writing of
the name and address of any assignee or collateral assignee.
19. Subleasing. Lessee shall have the unreserved and unqualified right to sublet tower,
building, and ground space upon the Premises to subtenants without the necessity of obtaining
Lessor's consent.
20. Execution of Other Instruments. Lessor agrees to execute, acknowledge, and deliver to
Lessee other instruments respecting the Premises, as Lessee or Lessee's lender may reasonably
request from time to time; provided that any such instruments are in furtherance of, and do not
substantially expand, Lessee's rights and privileges herein established. Lessor also agrees to
reasonably cooperate with Lessee's efforts to obtain all private and public consents related to
Lessee's use of the Premises, as long as Lessor is not expected to bear the financial burden of any
such efforts or undertake any lobbying on behalf of Lessee.
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21. Removal of Improvements. The Improvements are agreed to be Lessee's personal
property and shall never be considered fixtures to the real estate. Lessee shall at all times be
authorized to remove the Improvements from the Premises. Upon the expiration or earlier
termination of this Lease, Lessee shall, if requested by Lessor and at Lessee's expense, remove
any above-ground Improvements from the Premises. If Lessor does not notify Lessee that
Lessee must remove such Improvements, then Lessee shall have the option of either removing or
abandoning such Improvements, and in any event Lessee shall be entitled to abandon all
footings, foundations, and other below-ground Improvements in place. Lessor shall, at its
discretion, have the right to keep portions of fixtures it desires, other than (i) the one (1) or more
equipment buildings, and (ii) the equipment for the transmission, reception, encryption, and
translation of voice and data signals by means of radio frequency energy and landline carriage.
22. Conditions Precedent. This Lease and Lessee's obligations hereunder, including the
obligations to pay compensation or liquidated damages, are expressly conditioned upon and
subject to the following:
(a) Lessee must receive all necessary local, state, and federal governmental approvals
relating to Lessee's intended use of the Premises;
(b) Lessee's technical reports must establish to Lessee's exclusive satisfaction that the
Premises are capable of being suitably engineered to accomplish Lessee's intended use of the
Premises;
(c) Lessee's title insurer must determine that Lessor owns good and clear marketable title to
the land underlying the Premises, and that such title is free from encumbrances and restrictions
which would interfere with Lessee's intended use of the Premises or would impair Lessee's
ability to pledge the leasehold estate as collateral to secure debt financing; and
(d) Written objections, if any, by local community residents must be resolved to the
exclusive satisfaction of Lessee to ensure popular support of Lessee's operations.
(e) Lessee and Lessor agree to the Special Conditions as noted on the attached Exhibit A-1,
which are hereby incorporated by reference.
23. Abatement of Compensation Pending Conditions. Lessee shall have no obligation to pay
compensation to Lessor until all the Conditions Precedent have been satisfied or waived, and any
compensation which would otherwise be due for the intervening time pending satisfaction of the
Conditions Precedent is hereby excused and forgiven.
24. Quiet Enjoyment. Lessor covenants that Lessee shall have quiet and peaceable
possession of the Premises throughout the Lease term as the same may be extended, and that
Lessor will not intentionally disturb Lessee's enjoyment thereof as long as Lessee is not in
default under this Lease.
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25. Environmental Warranty. Lessor, to the best of its knowledge, has never generated,
stored, handled, or disposed of any hazardous waste or hazardous substance upon the Leasehold
Parcel, and that Lessor has no knowledge of such uses historically having been made of the
Leasehold Parcel or such substances historically having been introduced thereon.
26. Binding Effect. All of the covenants, conditions, and provisions of this Lease shall inure
to the benefit of and be binding upon the parties hereto and their respective successors and
assigns.
27. Entire Agreement. This Lease constitutes the entire agreement between the parties and
supersedes any prior understandings or oral or written agreements between the parties respecting
the within subject matter.
28. Modifications. This Lease may not be modified, except in writing signed by the party
against whom such modification is sought to be enforced.
29. Attorney's fees. In any action on this Lease at law or in equity, the prevailing party shall
be entitled to recover the reasonable costs of its successful case, including reasonable attorney's
fees and costs of appeal.
30. Subordination. Lessee agrees to subordinate this Lease to any mortgage or trust deed
which may hereafter be placed on the Premises, provided such mortgagee or trustee thereunder
shall ensure to Lessee the right to possession of the Premises and other rights granted to Lessee
herein so long as Lessee is not in default beyond any applicable grace or cure period, such
assurance to be in form reasonably satisfactory to Lessee. If requested by Lessee, Lessor agrees
to use Lessor's best efforts to assist Lessee in obtaining from any holder of a security interest in
the land underlying the Premises a non-disturbance agreement in form reasonably satisfactory to
Lessee.
31. Notices. All notices and correspondence shall be sent to the following:
Lessor: Lessee:
The Mayor of Waterloo,Iowa United States Cellular Corporation
715 Mulberry Street Attn: Real Estate
Waterloo,Iowa 56701 8410 West Bryn Mawr Avenue
Suite 700
cc: City Attorney Chicago,Illinois 60631
cc. City Planner
cc: United States Cellular Corporation
Attn: Real Estate
5975 Rockwell Drive N.E.
Cedar Rapids, Iowa 52402
32. Miscellaneous. Lessee agrees that it shall not allow any encumbrances to be placed on
the property, with the exception of those encumbrances expressly mentioned in Sections 18, 19,
and 22(c).
END OF AGREEMENT
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto bind themselves to this Ground Lease as of the day
and year first above written.
LESSOR:
The City of Waterloo, Iowa
/ ATTEST:
By.'��. /L/! u01i By: 1 t4.
John ' Roof,Mayor , Nancy Eckert, City Clerk
LESSEE:
Waterloo/Cedar Falls CELLTELCO Partnership,
a Washington D.C. General Partnership
By: ems...
Carroll D. Blake
Director of Network Operations,
Midwest Region,
United States Cellular®Wireless Communications
7
ACKNOWLEDGEMENTS
STATE OF IOWA )
) ss:
COUNTY OF BLACK HAWK )
On this e9 3 day of , 1998, before me a Notary Public in and for
the State of Iowa, personally appeared John R. Rooff, and Nancy Eckert, to me personally
known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively, of
the City of Waterloo, Iowa, a Municipal corporation, created and existing under the laws of the
State of Iowa, and that the seal affixed to the foregoing instrument is the seal of said Municipal
corporation, and that said instrument was signed and sealed on behalf of said Municipal
corporation by authority and resolution of its City Council and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal corporation by it and
by them voluntarily executed.
/120-71 -
Notary Public
My commission expires: D5- )' '- 9f
STATE OF IOWA )
) ss:
COUNTY OF LINN )
I, the undersigned, a notary public in and for the State and County aforesaid, do hereby
certify that Carroll D. Blake, a Director of Network Operations for United States Cellular
Wireless Communications, known to me to be the same person whose name is subscribed to the
foregoing Ground Lease, appeared before me this day in person and acknowledged that, pursuant
to his authority, he signed the said Lease as his free and voluntary act on behalf of the named
Lessee corporation, for the uses and purposes therein stated.
Given under my hand and seal this a day of IOoUc bpr, , 1998.
�•t GINGER M.WOLF < � QIP
MY COMMISSION EXpgr F-
March 18,2000 Notary Public
My commission expires:3JJgo7000
8
EXHIBIT A-1
SPECIAL CONDITIONS
Waterloo/Cedar Falls CELLTELCO Partnership, doing business as United States Cellular®
Wireless Communications (the "Lessee") agrees with the City of Waterloo (the "Lessor")that
Lessee's construction of its communications antenna tower(the "Tower")pursuant to this Ground
Lease, dated November 1, 1998, shall be subject to the following special conditions:
Lessee shall construct a Tower of camouflaged design allowing for its primary use as a cellular
radio-telephone communications facility and allowing for its secondary use as a flag pole.
Lessee shall submit plans and specifications for the Tower to Lessor in advance of commencing
construction to ensure that the Tower is appropriately designed to allow its dual uses as a cellular
radio-telephone communications facility and as a flag pole.
Lessee agrees that any modifications or replacements of the Tower shall be similar to the initial
improvements and Lessee shall obtain Lessor's prior approval of any construction, other than
routine maintenance, outside of the fenced 30'x40' leasehold parcel. Lessor is under no obligation
to approve any deviation from the originally proposed camouflage tower design or
improvements.
Lessee shall provide Lessor with two (2) flags of the United States of America. Lessor shall fly
these flags on the Tower following all applicable practices and customs. As necessary, Lessor
shall supply any replacement flags beyond these two (2)initial flags. Lessor shall be fully
responsible for maintaining and retiring these flags. In its discretion, Lessor may fly any
additional flags that it deems appropriate, subject to Lessee's consent which shall not be
unreasonably withheld.
Lessee agrees to provide and maintain necessary nighttime lighting for these flags. Lessee shall
be fully responsible for maintaining the Tower itself.
IN WITNESS WHEREOF,the parties hereto bind themselves to the Special Conditions of this
Ground Lease as of the day and year first above written.
Lessor: Lessee:
City of Waterloo, Iowa Waterloo/Cedar Falls CELLTELCO
Partnership
&OIL /1/, Arai Clee.
John ' ' •off, Mayor p Carroll D. Blake, Director of Network
Operations
9
UNITED STATES CELLULAR CORPORATION
EXHIBIT A
Hwy. 218
Right of Way
30' x 40'
30' Proposed flagpole leased
compound
Proposed
'Welcome" sign 12' x 20'
equipment shelter
\ Iiiiiiiiiii,;;;;,..:;..,..H:..,....„.,..„......,....,...„.„.,.,..,....,:,:..,..„,........,...... ......... .., ,
Solid wood fence
48'
}
ExistingIiiigiiitilit Trees
128'
Additional trees 10' r T
installed by City at 20' V •
City's expense r -
N:)) \'.........---..."....-
N� Trus
/.... .. ::::.7..,i......:....,......T.„.....T.....:..:0
50' 0 0 0 .
Note: Cables to be run underground from
shelter to pole. Compound to be
crushed rock base. New 20 wide access drive.
Asphalt or concrete.
Right of Way
Texas Road
This Resolution prepared by Nancy Eckert, City Clerk, 715 Mulberry
Street, Waterloo, Iowa.
RESOLUTION NO. 1998-675
RESOLUTION FIXING THE TIME AND PLACE OF
HEARING AND NOTICE TO BE GIVEN ON THE 25-YEAR
LEASE AGREEMENT WITH U.S. CELLULAR WIRELESS
COMMUNICATIONS TO PLACE A STEALTH CELLULAR
TOWER GENERALLY LOCATED BETWEEN U.S. 218 AND
TEXAS ROAD AS NOVEMBER 2, 1998, AT 7 :00 P.M.
IN THE COUNCIL CHAMBERS AND INSTRUCTING CITY
CLERK TO PUBLISH NOTICE OF HEARING.
WHEREAS, the Council of the City of Waterloo, Iowa, shall
meet in the Council Chambers in the City Hall in the City of
Waterloo, Iowa, at 7 : 00 p.m. on the 2nd day of November, 1998,
for the purpose of considering a 25-Year Lease Agreement with U.S.
Cellular Wireless Communications to place a stealth cellular tower
generally located between U.S. 218 and Texas Road with a one time
payment of $40, 000 . 00, with four five year renewals at a cost of
$10, 000 . 00 per renewal .
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
WATERLOO, IOWA, that the City Clerk is hereby directed to publish
notice of the time and place of said hearing in the Waterloo
Courier.
PASSED AND ADOPTED this 19th day of October, 1998 .
Ile
John ip'oof , ayor//
ATTEST:
G
Nancy Eck i , City Clerk
This Resolution prepared by Nancy Eckert, 715 Mulberry Street,
Waterloo, Iowa.
RESOLUTION NO. 1998-693
RESOLUTION APPROVING TWENTY-FIVE (25) YEAR
LEASE AGREEMENT WITH U. S. CELLULAR AND
DIRECTING EXECUTION OF SAID AGREEMENT BY
MAYOR.
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF WATERLOO, IOWA,
that the Twenty-Five (25) Year Lease Agreement dated November 2,
1998, to place a stealth tower on property generally located
between U. S . 218 and Texas Road with a one time lease payment of
$40, 000 . 00, with four five year renewals at a cost of $10, 000 . 00
per renewal, by and between U. S . Cellular® and the City of
Waterloo, Iowa, be and the same is hereby approved, and the Mayor
authorized to execute the same in behalf of the City of Waterloo,
Iowa.
PASSED AND ADOPTED this 2nd day of November, 1998 .
47r,
John ' . Rooff Mayor 40
ATTEST:
/, C""L
Nancy Ecke 1 City Clerk