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WATER TOWER / LAND LEASE AGREEMENT
THIS TOWER/LAND LEASE AGREEMENT (“this Lease”)
is entered into this __ day of ______ , ____
between the _____________________, (CITY) a municipal corporation and
____________________ (COMPANY).
In consideration of the terms and covenants of
this Agreement, and for other good and valuable consideration, the
parties agree as follows:
1. Leased Property. Subject to
the terms and conditions of this Lease, ___________ (CITY) leases to
______________ (COMPANY) and COMPANY leases from CITY a certain portion of real
property owned by CITY, which property is located in _______ County, __________,
and legally described in Exhibit “B” as Parcel A and attached hereto (the
“Property”) which Property is subject to all existing easements, covenants,
conditions, and restriction of record, if any. Legal descriptions of the
Property and access easement as provided by the surveyor are included in Exhibit
“B.” CITY also leases to COMPANY and COMPANY leases from CITY certain space on
CITY's water tower (the "Tower”) located on the Property, which location and
orientation of space is more particularly described in Exhibit “A” attached
hereto. The actual location of the leased premises on the Tower and on the
Property shall be depicted by drawings shown in Exhibit A attached hereto.
2. Term. The initial term of
this Lease shall be five (5) years, commencing upon the date this
document is executed by CITY and COMPANY (“Commencement Date”). If
COMPANY fails to begin installation and use of the Tower within 60 days of
execution, this lease will lapse unless rent payments as set out below are made.
If COMPANY has failed to install its equipment upon the site described in this
Lease within 12 months of execution, even though all rent payments have been
made, CITY may choose to terminate this Lease. If termination is chosen, CITY
will inform COMPANY in writing. COMPANY shall have the right to extend this
Lease for four additional five-year terms, subject to all the terms and
conditions of this Lease. This Lease shall automatically be renewed for each
successive renewal term unless COMPANY shall notify CITY of COMPANY's intention
not to renew the Lease at least six (6) months prior to the expiration of the
any original or any renewal term.
3. Rent.
a. This Agreement shall be for an
initial term of five (5) years, subject to other provisions of this
document, commencing on the date this lease is fully executed. Rent shall be
paid in equal annual installments, on the same day of the year as the
Commencement Date, each year, in advance, to the CITY, or to such other person,
firm, or place as CITY may, from time to time, designate in writing at least
thirty (30) days in advance of any rental payment date.
b. The rent for the first three (3)
years of the initial term of this Lease shall be $6,000.00 per year. The rent
for years four and five of the initial term of this lease shall be $8,400 per
year.
c. The annual rent for the first
(1st) five (5) year extension term shall be increased to $11,640.00- per year;
the second (2nd) five (5) year extension term annual rental shall be
increased to $13,968.00 - per year; the third (3rd) five (5) year
extension term annual rental shall be increased to $16,762.00- per year-, the
fourth (4th) five (5) year extension term annual rental shall be
increased to $20,114- per year.
d. If this Lease is terminated at a time other than
on the last day of a lease term, rent shall be prorated as of the date the water
tower and premises are restored to their condition on the commencement date of
this Lease, normal wear and tear excepted, and, in the event of termination
for any reason other than nonpayment of Rent, all prepaid Rents prorated after
said date shall be refunded to COMPANY. In the event of termination for any
other reason than nonpayment of rent, the prorated rent to be returned to
COMPANY are subject to deductions of costs incurred by CITY if COMPANY fails to
remove equipment within sixty (60) days of notice of termination.
e. If this Lease is terminated at a
time other than on the last day of a lease term, Rent shall be prorated as of
the date of termination, and, in the event of termination for any reason other
than nonpayment of Rent, all prepaid Rents shall be refunded to COMPANY.
4. Use. COMPANY may use the
leased premises for the installation, operation, and maintenance of facilities
for the transmission and reception of radio communication signals in such
frequencies as may be assigned to COMPANY by the Federal Communications
Commission (“FCC”) and for the operation of related equipment in accordance with
the provisions of this Lease. COMPANY shall use the leased premises in
compliance with all federal, state, local laws and regulations. If for any
reason COMPANY’s use of the leased premises fails to comply with any federal,
state or local law and COMPANY fails to bring its use within compliance within
thirty days of written notice of such noncompliance, this Lease shall be
terminated as provided herein, unless sooner authorized by such law. CITY agrees
to reasonably cooperate with COMPANY in obtaining, at COMPANY’s expense, all
licenses and permits required for COMPANY’s use of the leased premises.
5. Installation of
Improvements. Access. Utilities.
a. COMPANY shall have the right, at
its sole cost and expense, to install, operate and maintain the facilities on
the leased portions of the Tower described in Exhibit “A” attached hereto, which
facilities include radio transmitting and receiving antennas (the “Antenna
Facilities”). COMPANY’s installation of all such equipment, personal property,
and facilities shall be done according to plans approved by CITY, and no
equipment or property shall be subsequently relocated without CITY’s approval
which approvals shall not be unreasonably withheld or delayed. The Antenna
Facilities shall remain the exclusive property of COMPANY, subject to the
provisions of Paragraph 7 of this Lease.
b. COMPANY may update or replace the
Antenna facilities from time to time with the prior written approval of CITY,
provided that the replacement facilities are not greater in number or size than
the existing facilities and provided that their location on the leased
portions of the tower is satisfactory to CITY. COMPANY shall submit to CITY a
proposal for any such replacement facilities, and for any supplemental materials
as may be reasonably requested for CITY’s evaluation and approval, which
approval shall not be unreasonably withheld or delayed. All costs for required
structural studies will be paid by COMPANY within 30 days of receipt of a
detailed invoice.
c. COMPANY shall have the right, at
its sole cost and expense, to install, operate and maintain on the leased
portions of the Property the improvements described in Exhibit “A” attached
hereto, which improvements include a structure to house COMPANY’s equipment. All
such improvements shall be constructed in accordance with CITY’s specifications
and according to a site plan approved by CITY. The Equipment Shelter and all
equipment stored or operated therein, for the benefit of COMPANY, shall remain
the exclusive property of COMPANY, subject to the provisions of Paragraph 7 of
this Lease. No equipment shall be stored on the Property outside of the
Equipment Shelter, and all appropriate permits must be obtained prior to
construction and use of the Equipment Shelter.
d. At all times during this Lease,
CITY hereby grants to COMPANY a nonexclusive easement for ingress, egress, and
access over the Property which gives COMPANY access to the Equipment Shelter and
to the base of the water tower at no additional charge to COMPANY. All routine
site maintenance will be by foot, with vehicle access by vehicle only in
emergency situations.
e. COMPANY, at all times during this
Lease, shall have access to the Property and the Equipment Shelter in order to
install, operate and maintain its transmission facilities. COMPANY shall have
access to the Tower only with the approval of CITY and in the presence of an
employee of CITY. COMPANY shall request access to the Tower twenty-four
hours in advance and CITY’s approval thereof shall not be unreasonably withheld
or delayed.
f. COMPANY shall separately meter
charges for the consumption of electricity and any other utilities associated
with its use of the Property and shall pay all costs associated therewith. All
utilities will be buried.
g. COMPANY shall provide CITY with
“as built” drawings of the equipment installed on the water tower and
improvements installed on the Property which show the actual location of all
equipment and improvements. Such drawings shall be accompanied by a complete and
detailed inventory of all equipment, personal property, and Antenna Facilities
actually placed on the Tower. A site plan will be provided showing the proposed
placement of the shelter.
h. COMPANY shall have sole
responsibility for the maintenance, repair, and security of its equipment,
personal property, Antenna Facilities, Equipment Shelter, and any other
leasehold improvements, and shall keep the same in good repair and condition
during the Lease term.
i. COMPANY will adhere to all OSHA
safety requirements.
j. COMPANY shall place no advertising
on the site or on any structure on the site.
k. All antennae panels will be
painted to match the water tower.
1. The site will be landscaped at
COMPANY sole expense to screen the building from all adjacent rental properties
and streets. All disturbed areas will be restored to a condition reasonably
acceptable to the CITY. Final approval of landscaping and the landscaping plan
shall be given by City’s Board and Planning and Zoning Commission. Said approval
shall not be unreasonably delayed, withheld, or conditioned.
m. Any additional costs for servicing
or maintaining the tower that are due to the presence of the installation of the
shelter, or any other equipment, will be the responsibility of COMPANY.
n. COMPANY shall install at its sole
expense a motion-sensitive security light on the equipment building.
o. All heating, ventilating or air
conditioning equipment belonging to COMPANY will comply with the Noise Ordinance
of the CITY.
p. CITY will notify COMPANY at least
forty-five (45) days in advance of the date when the water tower is
scheduled to be painted, repaired, rebuilt or scheduled for general maintenance.
The parties will cooperate to determine which of the following two options will
be used to address the impact of the Antenna Facility on the cost of painting or
repairing the water tower: 1) Shortly before the painting date, COMPANY will
place a temporary antenna array on a crane parked near the site. COMPANY will
then remove the antennas from the water tower and the painting will proceed as
it normally does. Once the painting or repair is finished, COMPANY will then
re-attach the antennas where they were and will have them painted to match the
newly repaired/painted water tower. All costs incurred in removing the antenna,
placement of a temporary antenna array, reattaching and painting the antennas
shall be the sole responsibility of COMPANY. 2) The contractor will bid on the
cost of painting/repairing the tower without the Antenna Facility. The
contractor will then bid on the cost of painting/repairing the tower with
COMPANY antennas left in place. The contractor will then proceed to paint/repair
the tower with COMPANY’s antennas left in place. COMPANY will reimburse CITY for
the difference between the two bids.
6. Reasonable Approval. Both parties
shall not unreasonably withhold or delay approvals required under this lease.
7. Interference.
a. COMPANY’s installation, operation,
and use of its transmission facilities under this Lease shall not damage or
interfere in any way with CITY’s water tower operations or related repair and
maintenance activities. CITY, at all times during this Lease, reserves the right
to take any action it deems necessary, in its sole discretion, to repair,
maintain, alter, or improve the leased premises and to temporarily interfere
with COMPANY’s leasehold improvements as may be necessary in order to carry out
any of such activities. CITY agrees to give reasonable advance notice of such
activities to COMPANY and to reasonably cooperate with COMPANY to carry out such
activities with a minimum amount of interference with COMPANY’s transmission
operations.
b. COMPANY shall operate its
telecommunication facility in a manner that will not cause radio frequency
interference to any and all of the City’s current and future communications
equipment COMPANY shall operate its telecommunications facility in a manner that
will not cause radio frequency interference to the operations of other
subtenants, lessees, and/or licensees’ operations which predate installation of
COMPANY’S telecommunications facilities under this lease. Any lease subsequent
to this lease by the City which permits the installation of telecommunications
equipment on the site shall include the following provision:
Tenant agrees to operate its transmission
facilities so as to not create unreasonable radio frequency interference with
the present transmission operations of the City or COMPANY or its successors. In
the event such interference occurs, tenant agrees to correct such interference
within 48 hours of written notice or cease use of its facilities.
Said clause may be enforced by either the
City or COMPANY, either jointly or individually at the party’s sole expense. The
City shall be under no obligation to enforce said clause on behalf of COMPANY.
Without limiting any other remedy at law or equity, COMPANY shall have the right
to terminate this lease upon 30 days written notice in the event its reception
or transmission is interfered with by other antenna equipment, or obstacles
constructed or operated in COMPANY’S reception or transmission paths. COMPANY
shall pay nine (9) months rent as liquidated damages for such termination.
c. This lease is made with the
knowledge of both parties that CITY has no current tenant on the water tower.
d. In the event that COMPANY’s
transmission operations interfere with any type of electronic reception or
transmission of any other parties in the surrounding area, COMPANY agrees to use
its reasonable best efforts to remedy such interference in accordance with
applicable regulations and standards of the FCC and any other governing body.
COMPANY warrants that it shall maintain all of its Antenna Facilities in full
compliance with all applicable regulations of the FCC and other governing
bodies. COMPANY will be responsible for correcting any intermod problems with
other users of the property, should they occur due to the equipment installed
and operated by COMPANY. In the event the interference cannot be eliminated,
CITY may immediately terminate this agreement and the easement granted
hereunder, whereafter COMPANY shall immediately remove all of its personal
property and fixtures which interfere with City’s use of the premises and
remove all remaining personal property and fixtures in accordance with paragraph
Sc.
8. Termination.
a. Except as otherwise provided
herein, this Lease may be terminated by one party upon thirty (30) days written
notice to the other party as follows:
1) By either party, upon a default of
any covenant or term hereof by the other party, which default is not cured
within thirty (30) days of receipt of written notice of default to the other
party;
2) By COMPANY, if it is unable to
obtain or maintain any license, permit, or other governmental approval
necessary for the construction and/or operation of the transmission facilities
or COMPANY business;
3) By CITY, if it determines in its
sole discretion and for any reason, that the tower is structurally unsound for
use as a water tower, including but not limited to consideration of age of the
structure, damage or destruction of all or part of the water tower or the
Property from any source, or factors relating to condition of the Property; or
4) By CITY, if COMPANY’s use of the
Property becomes illegal under any federal, state or local law, rule or
regulation.
b. If the water tower is destroyed,
dismantled, or removed, COMPANY shall have the right to construct its own tower,
at its cost, of design approved by CITY, which approval shall not be
unreasonably withheld or delayed, at a location as close as reasonably possible
to the location of the water tower so as to give COMPANY similar radio signal
coverage as COMPANY enjoyed from the water tower. If a replacement water tower
is constructed anywhere on CITY’s property, COMPANY shall have the tight to
place COMPANY’s antenna and appurtenance on top of the new replacement water
tower at COMPANY’s cost and in a similar manner as COMPANY’s antenna and
appurtenance on the existing water tower.
c. Upon termination of this Lease for
any reason, COMPANY shall remove all of its equipment, personal property,
Antenna Facilities, structure and leasehold improvements from the water
tower and the Property within sixty (60) days after the date of termination, and
shall restore the water tower and the Property to the condition it was in on the
Commencement Date of the term of this Lease ordinary wear and tear excepted, all
at COMPANY’s sole cost and expense. Any such property which is not removed by
end of said sixty (60) day period shall become the property of CITY.
d. In the event this agreement is
terminated by CITY any prepaid rents prorated from the date the water tower and
property are reasonably restored to their condition on the commencement date of
this Lease will be refunded to COMPANY. In the event of termination for any
other reason than nonpayment of rent, the prorated rent to be returned to
COMPANY are subject to deductions of costs incurred by CITY if COMPANY fails to
remove equipment within 60 days of notice of termination.
9. Insurance.
a. COMPANY shall provide
Comprehensive General Liability Insurance coverage, including
premises/operations coverage, independent contractor’s liability, completed
operations coverage, contractual liability coverage, and CITY will be held
harmless for acts of outside vendors in a combined single limit of not less than
One Million Dollars ($1,000,000.00) per occurrence, and Two Million Dollars
($2,000,000.00) aggregate, and name CITY as an additional insured on such policy
or policies. COMPANY may satisfy this requirement by an endorsement to its
underlying Insurance or umbrella liability policy.
b. Neither party shall be liable to
the other (or to the other’s successors or assigns) for any loss or damage
caused by fire or any of the risks enumerated in a standard “All Risk” insurance
policy, and, in the event of such insured loss, neither party’s insurance
company shall have a subrogated claim against the other.
c. COMPANY shall provide to CITY,
prior to Commencement Date of the Lease Term, evidence of the required insurance
in the form of a certificate of insurance issued by an insurance company
licensed to do business in the State of Wisconsin, which includes all coverage
required above and contains evidence of the waiver of subrogation contained
above. Said certificate shall also provide that the coverage may not be
concealed, nonrenewable, or materially changed without thirty (30) days prior
written notice to CITY.
10. In the event that it is
established that COMPANY’s operation of the wireless facility is
determined to be medically related to a health problem, CITY must notify COMPANY
of the related issues. In the event that COMPANY causes, permits or allows such
activities determined to be medically
related to a health problem to continue, CITY shall have the right to
immediately terminate this Lease if COMPANY fails to discontinue or remedy the
operation within 60 days of written notice of any such relationship.
11. Damage or Destruction of
Property. If the Property, water tower, or Antenna Facilities are
destroyed or damaged so as, in COMPANY’s judgment to render the site unusable as
an Antenna Facility, COMPANY may elect to terminate this Lease upon thirty (30)
days written notice to CITY. In the event COMPANY elects to terminate the Lease,
COMPANY shall be entitled to reimbursement of any prepaid rent prorated prior to
the date of termination.
12. Condemnation. In the event
the whole of the Property is taken by eminent domain, this Lease shall terminate
as of the date title to the Property vests in the condemning authority. In the
event a portion of the Property is taken by eminent domain, either party shall
have the right to terminate this Lease as of said date of title transfer, by
giving thirty (30) days written notice to the other party. In the event of any
taking under the power of eminent domain, COMPANY shall not be entitled to any
portion of the award paid for the taking and CITY shall receive the full amount
of such award, COMPANY hereby expressly waiving any right or claim to any
portion thereof. Although all damages, whether awarded as compensation for
diminution in value of the leasehold or the fee of the Property, shall belong to
CITY, COMPANY shall have the right to claim and recover from the condemning
authority, but not from CITY, such compensation as may be separately awarded or
recoverable by COMPANY on account of any and all damage to COMPANY’s business by
reason of the taking and for or on account of any cost or loss to which COMPANY
might be put in removing and relocating its equipment, personal property,
Antenna Facilities and leasehold improvements. CITY will refund any
prepaid rents prorated as of the date the Property is taken by the Condemning
Authority.
13. Indemnification. Except
for the negligent acts or willful misconduct of CITY’s agents or employees,
COMPANY agrees to indemnify, defend, and hold harmless CITY and its elected
officials, officers, employees, agents, and representatives, from and against
any and all claims, costs, losses, expenses, demands, actions, or causes of
action, including reasonable attorneys’ fees and other costs and expenses of
litigation, which may be asserted against or incurred by CITY or for which CITY
may be held liable, which arise from the negligence, willful misconduct, or
other fault of COMPANY or its employees, agents, or subcontractors in the
performance of this Lease or from the installation, operation, use, maintenance,
repair, removal, or presence of COMPANY’s transmission facilities on the
Property and the water tower, including but not limited to electrical
interference or health problems caused by COMPANY’s transmission operations, and
specifically including the representations and warranties of Paragraph 15(b) of
this Lease.
14. Notices. All notices,
requests, demands, and other communications hereunder shall be in writing and
shall be deemed given if personally delivered or mailed, certified mail, return
receipt requested to the following addresses:
If to CITY, to:
___________
___________
___________
If to COMPANY, to:
___________
___________
___________
15. Representations and
Warranties.
a. CITY warrants that (1) it has full
right, power, and authority to execute this Lease; and (2) to the best of its
knowledge, it has good and unencumbered title to the Property free and clear of
any liens or mortgages, except as may be disclosed by review of title. CITY
warrants that COMPANY shall have the quiet enjoyment of the Property during the
term of this Lease in accordance with its terms.
b. CITY warrants that it has no
knowledge of any substance, chemical, or waste (collectively, “Substance”) on
the site that is identified as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation.
c. COMPANY represents and warrants
that its storage and use of any Substance on the Property will comply with
applicable federal, state or local law or regulation and that it will store and
use said Substance on the property only if necessary for its transmission
operations. COMPANY agrees to indemnify and hold harmless CITY from and against
any and all liability, loss, cost, damage, and expense, including reasonable
attorneys’ fees relating from or due to the release, threatened release, storage
or discovery of any of the above named materials that are part of COMPANY
equipment, personal property, Antenna Facilities, or any component parts or
by-products thereof in violation of applicable law.
d. COMPANY, at its own cost, has the
tight to obtain a title commitment for a leasehold title policy from a title
insurance company of its choice. If, in the opinion of COMPANY, such title
commitment shows any defects of title or any liens or encumbrances which may
adversely affect COMPANY use of the Property, COMPANY shall have the right to
cancel this Lease immediately upon written notice to CITY.
16. Assignment. COMPANY may
not assign or sublet this Lease without the prior written consent of CITY except
to any entity which controls, is controlled by, or is under the common control
with COMPANY, or to any entity resulting from any merger or consolidation with
COMPANY, or to any partner of COMPANY, or to any partnership in which COMPANY is
a general partner, or to any person or entity which acquires all of the assets
of COMPANY as a going concern, or to any entity which obtains a security
interest in a substantial portion of COMPANY’s assets, provided that COMPANY
continues to indemnify and hold CITY harmless in accordance with Paragraph 13
above.
17. Successors and Assigns.
This Lease shall run with the Property described in Exhibit “B.” This Lease
shall be binding upon and inure to the benefit of the parties, their respective
successors, personal representatives, and assigns.
18. Miscellaneous.
a. Each party agrees to furnish to
the other, within ten (10) days after request, such truthful estoppel
information as the other may reasonably request.
b. This Lease constitutes the entire
agreement and understanding of the parties, and supersedes all offers,
negotiations, and other agreements of any kind. There are no representations or
understandings of any kind not set forth herein. Any modification of or
amendment to this Lease must be in writing and executed by both parties.
c. This Lease shall be construed in
accordance with the laws of the State of Wisconsin.
d. If any term of this Lease is found
to be void or invalid, such invalidity shall not affect the remaining terms of
this Lease, which shall continue in full force and effect.
e. This Lease is subject to all
zoning approvals and building permits.
END OF TERMS
THE UNDERSIGNED LESSOR HEREBY AGREES TO LEASE THE ABOVE-MENTIONED PROPERTY ON
THE TERMS AND CONDITIONS AS SET FORTH HEREIN
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