S-1576 - 08/13/2019 - BOARD OF TRUSTEES - Ordinances Supporting Documents T-Mobile Site No.CH75619A
WATER TOWER LEASE AGREEMENT n
THIS WATER TOWER LEASE AGREEMENT(the "Lease"), made thisZ_OT day of ffyGus'T
2019,between Village of Oak Brook,an Illinois municipal corporation,with an address as stated
in Paragraph 1.1, (hereinafter designated "Landlord"),and T-Mobile Central LLC,a Delaware
limited liability company,with its principal address as stated in Paragraph 1.12(hereinafter
designated "Tenant"). The Landlord and Tenant are at times collectively referred to hereinafter as
the"Parties"or individually as the"Party".
1: Lease Summary
1.1 Landlord's Contact Person 1.9 Propeqy
Richard Ginex Landlord is the owner of a parcel of
Village of Oak Brook land (the "Property") commonly
1200 Oak Brook Road known as 2011 Windsor Drive, Oak
Oak Brook, IL 60523 Brook, IL 60523. The Property is
more specifically described in Exhibit
1.2 Landlord "A", annexed hereto.
Village of Oak Brook
1.10 Leased Premises
1.3 Name and Address for Payment of Landlord hereby leases to and Tenant
Rent leases from Landlord, approximately
Village of Oak Brook 312.5 square feet of the Property and
1200 Oak Brook Road all access and utility easements
Oak Brook, IL 60523 necessary for Tenant's use as
permitted herein (collectively,the
1.4 Landlord's Taxpa ey r ID "Premises"), as more specifically
36-6009534 depicted on Exhibit"B", annexed
hereto.
1.5 Property Identification Numbers
0624404001 1.11 Lease
This Land Lease Agreement,
including Exhibits "A", "B" & "C".
1.6 Commencement Date
The Commencement Date is the date 1.12 Tenant Address for Notice
Tenant exercises the option. T-Mobile USA, Inc.
12920 SE 38th Street
1.7 Term Bellevue, WA 98006
Five (5)years and four(4)additional Attn: Lease Compliance/Site No.
automatic five(5)year renewal terms; CH75619A
subject to Paragraph 2.4.
1.8 Rent During First Year
See Section 2.5.
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2: Term and Rent
2.1 Option.
(a) Landlord grants to Tenant an option (the "Option") to lease the Leased
Premises(as hereinafter defined) for the purposes permitted in this Lease Agreement.
(b) During the Option Term (as defined below) Tenant and its agents,
engineers, surveyors and other representatives will have the right to enter upon the Leased
Premises (as defined below) to inspect, examine, conduct soil borings, drainage testing, material
sampling, radio frequency testing and other geological or engineering tests or studies of the Leased
Premises (collectively, the "Tests"), to apply for and obtain licenses, permits, approvals, or other
relief required of or deemed necessary or appropriate at Tenant's reasonable discretion for its use
of the Leased Premises and including, without limitation, applications for zoning variances,
ordinances, amendments or special use permits, and construction permits (collectively, the
"Government Approvals"), initiate the ordering and/or scheduling of necessary utilities, and
otherwise to do those things on or off the Property that, in the opinion of Tenant, are necessary in
Tenant's reasonable discretion to determine the physical condition of the Property, the
environmental history of the Property, Landlord's title to the Property and the feasibility or
suitability of the Property for Tenant's Permitted Use, all at Tenant's expense. Tenant will restore
the Property to its condition as it existed at the commencement of the Option Term, reasonable
wear and tear and casualty not caused by Tenant excepted. In addition, Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all injury, loss, damage or claims
arising directly out of Tenant's Tests; the obligation for which shall survive the expiration of the
Option Term and this Agreement. During the Option Term, and during the term of this
Agreement, Tenant shall be required to obtain, maintain, and present evidence of, the types and
amounts of insurance described in Section 7 below.
(c) In consideration of Landlord granting Tenant the Option, Tenant agrees to
pay Landlord the sum of Two Thousand and No/100 Dollars ($2,000.00) within thirty (30)
business days of the full execution of this Agreement(the "Effective Date"). The Option will be
for an initial term of one (1) year commencing on the Effective Date (the "Initial Option
Term") and may be renewed by Tenant for an additional six (6) months (the "Renewal Option
Term") upon written notification to Landlord and the payment of an additional Two Thousand
and No/100 Dollars ($2,000.00) no later than ten (10) days prior to the expiration date of the
Initial Option Term. The Initial Option Term and any Renewal Option Term are collectively
referred to as the"Option Term."
(d) During the Option Term, Tenant may exercise the Option by notifying
Landlord in writing. If Tenant does not exercise the Option during the Option Term, this
Agreement will terminate and the Parties will have no further liability to each other, except such
covenants which expressly survive the expiration or earlier termination of the Agreement.
(e) This Option may be assigned only in the manner permitted for this Lease
according to Section 12 below.
2.2 Premises. If Tenant exercises the Option then Landlord hereby leases to Tenant a
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portion of that certain parcel of property (the entirety of Landlord's property is referred to
hereinafter as the "Property"), located at 2011 Windsor Drive, Oak Brook, Illinois, and being
described as a space of approximately 312.5 square feet, together with space on the stem of
Landlord's Water Tower located on the Property at approximately 105 feet above grade for the
installation of Tenant's antennas and the non-exclusive right for ingress and egress, seven (7)days
a week twenty-four (24) hours a day, as further described in Paragraph 11 for access being
substantially as described herein in Exhibit "B" attached hereto and made a part hereof(hereinafter
collectively referred to as the"Premises").
2.3 Initial Term. The term of this Lease shall be for five (5) years and terminating
on the fifth anniversary of the Commencement Date (the "Term"), unless otherwise terminated
as provided in Paragraph 18. The date on which Tenant exercises the Option shall be deemed the
Commencement Date of this Agreement.
2.4 Option to Extend. The term of this Lease shall be automatically renewable for
four(4) additional terms of five (5) years ("Renewal Terms") each following the original term at
the annual rent stated below and otherwise upon the same terms and conditions stated in this
Lease. If Tenant desires not to extend any subsequent term of this Lease it shall give Landlord
written notice of its intention not to extend the term at least sixty(60) days prior to the expiration
of the then current term whereupon the Lease shall be deemed canceled upon the expiration of
the then current term. If Tenant shall remain in possession of the Premises at the expiration of
this Lease or any Renewal Term without a written agreement, such tenancy shall be deemed a
month-to-month tenancy, terminable upon thirty (30) days written notice, with rent increased to
125%and otherwise under the same terms and conditions of this Lease.
2.5 Rent Increases/Payment Bonds.
(a) The rent for this Lease is equal to Two Thousand Dollars ($2,000.00) per month.
Annually,the rent shall increase on each anniversary of the Commencement Date by 3%over the
rent of the previous year.
(b) On or before the Commencement Date, Tenant shall pay the Landlord an
irrevocable security deposit, in a form reasonably acceptable to Landlord, in the sum of One
Thousand and 00/100 Dollars ($1,000.00) (the "Security Deposit"). Said Security Deposit shall
be held by Landlord as security for the faithful performance by Tenant of the terms, covenants
and conditions of this Lease. If Tenant defaults under this Lease, which default is not cured by
Tenant as provided in Paragraph 13, Landlord may use, apply or retain all or a part of this
Security Deposit to compensate Landlord for any actual loss, damage or expense incurred or
suffered by Landlord by reason of Tenant's uncured default, as defined in Section 13. If the
Security Deposit is invaded by Landlord in accordance with this paragraph, Tenant shall restore
the Security Deposit within forty-five (45) days after the notice and demand from Landlord.
Landlord shall return the Security Deposit to Tenant or Tenant's assignee within forty-five (45)
days after the date of expiration or termination of this Lease. Nothing herein shall be construed
to limit the scope of Tenant's liability for defaults to the balance of the security deposit then on
deposit.
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(c) In order to further assure Landlord that the Tenant's improvements will be
properly removed, and the Premises returned to Landlord in accordance with this Lease, Tenant
shall deposit with Landlord on or prior to the Commencement Date a surety bond in the amount
of Ten Thousand Dollars ($10,000.00) as security for its obligation to remove its equipment and
improvements and restore the Premises at the termination of this Lease as provided in Section
18.3. Landlord shall be the named obligee on the bond. At the end of the Term of this Lease, if
Tenant has not removed all improvements on the Premises and restored same to the condition
required in this Lease within thirty (30) days of the expiration or earlier termination of this
Lease, then upon ten (10) days prior written notice to Tenant, Landlord may draw on the bond to
remove the improvements and restore the Premises as necessary. Nothing contained herein shall
be construed to limit Landlord's damages to the amount of the bond if it is forced to remove
Tenant's improvements and/or restore the Premises.
3: Reimbursement of Costs.
Tenant agrees to reimburse Landlord for any and all legal and professional consulting
fees associated with the negotiation and execution of this Agreement in an amount not to exceed
$2,500. Tenant shall also reimburse Landlord for all costs which arise from time to time
resulting from the exercise of Tenant's rights under this agreement, including but not limited to
draining the Water Tower, preparing the Water Tower for Tenant's equipment and engineering
review and inspections to ensure the Tenant's equipment, and replacements or substitutes
therefor, are safely attached to the Water Tower.
4: Methods of Payment.
4.1 First Rent Payment. Not later than 30 days after the Commencement Date,
Tenant shall pay Landlord rent for the first month of the Term.
4.2 Subsequent Monthly Rent Payments. Effective with the first (Ist) day of the
second (2"d) month of the Term (after the First Rent Payment) rent shall be payable monthly in
advance on the first (1st) day of each calendar month. Rent for any fractional month at the
beginning or at the end of the Term shall be prorated. Rent payments made after the tenth (IOfl')
day of the month shall be considered late (hereinafter "Late Payments"). Late Payments shall be
subject to a processing fee of one and one half percent(1.5%)
4.3 Location for Payment. All rent shall be paid to Landlord at the Address for
Payment of Rent in Paragraph 1.3 or to another person, firm or place which the Landlord may
from time to time designate in writing at least forty-five (45)days in advance of a rent payment
date.
5: Use of Property.
Tenant may use the Property for its own lawful voice, data and other telecommunications
purposes and. related site preparation, improvements and maintenance purposes in strict
accordance with the plans attached hereto as Exhibit C, local rules and governmental regulations,
and such use shall not interfere with Landlord's use of the Property (i.e., if Tenant is making
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improvements to the Property, Tenant cannot place equipment or materials in such a manner as
to block Landlord's access or affect the operation of the water tower). Landlord agrees to
cooperate with Tenant, at Tenant's expense, in making application for and obtaining all licenses,
permits and any and all other necessary approvals that may be required for Tenant's intended use
of the Premises. Tenant does not object to and will make reasonable efforts to allow co-location
of other wireless telecommunication companies on the water tower, provided that such
installation does not cause radio frequency or other interference with Tenant's Facilities, use or
operations.
6: Tenant's Installation.
6.1 Improvements.
(a) General. Subject to paragraph (b), Tenant has the right, at its sole cost and
expense, to erect, maintain, repair, replace, and operate on the Premises communications
facilities, antenna structure, antennas, electronic equipment, air conditioned equipment shelter,
back-up power generator, other personal property, fixtures, cables, transmission lines, utilities
lines and any other appurtenant improvements ("Tenant's Facilities"), provided Tenant first shall
obtain a building permit from the Village of Oak Brook prior to any activities conducted by
Tenant which result in the construction of new improvements or affects the Water Tower.
Tenant may from time to time replace any of these items with new or different items with the
substantially similar specifications so long as their installation is otherwise in compliance with
this Lease and applicable laws, ordinances and codes. Tenant's installation shall not interfere
with Landlord's use of the Property. Within thirty (30) days from the date of completion of any
construction activity (or as soon as possible thereafter weather conditions permit), whether upon
installation or later maintenance, repair and replacement, Tenant shall restore or cause to be
restored to the reasonable satisfaction of Landlord, the Premises and any other affected areas of
the Property, including without limitation any and all landscaping, as nearly as may be, to the
same condition that existed immediately prior to the commencement of such activities by Tenant,
reasonable wear and tear or damage by casualty not caused by the Tenant excepted.
(b) Detail. Tenant shall retrofit the existing well house on the Property to include
removal of the decorative wood members, removal and replacement of the existing roof flashing
and removal and replacement of the original brick face. Following completion of the foregoing
retrofit, the Tenant shall erect a 12.5'x25' well house extension that will include a new roof
structure. The roof for the entire combined building shall be a standing seam metal roof
manufactured by Berridge Manufacturing Co. finished in a weathered metallic dark bronze color.
The new/replacement brick face shall be manufactured by Robinson Brick Co. in Danbury color.
The roof and brick materials shall be approved by the Landlord prior to installation. All fiber
optic cable or other wiring used for Tenant's Facilities shall be installed in new conduit and
concealed underground and/or within the inside of the Water Tower. No greater than nine (9)
new antennas may be attached to the Water Tower.
6.2 Compliance with Law. Tenant undertakes full and complete responsibility at all
times hereafter for the expenses of, and quality of, installation of Tenant's Facilities and
compliance with all code requirements and regulations of governmental authorities having
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jurisdiction over the construction, maintenance and repair of Tenant's Facilities, including but
not limited to compliance with laws or regulations effecting construction of public buildings and
service areas used by public employees, and Tenant agrees to promptly remedy or correct any
deficiencies with such compliance. The installation shall be processed pursuant to permit and
conducted by authorized and licensed personnel. The construction work shall proceed without
interference or disruption, or minimization of same,to the current operations of the Landlord.
6.3 Lien-Free Work. Tenant shall (a)pay prior to delinquency all costs and expenses
of work done or caused to be done by Tenant in the Premises; (b) keep the title to the Property
and every part thereof free and clear of any lien or encumbrance in respect of such work; and (c)
indemnify and hold harmless Landlord against any claim, loss, cost, demand (including
reasonable legal fees), whether in respect of liens or otherwise, arising out of the supply of
material, services, or labor for such work. Tenant shall immediately notify Landlord of any lien,
claim of lien, or other action of which Tenant has constructive or actual knowledge and which
affects the title to the Property or any part thereof, and shall cause the same to be removed within
thirty (30) days after notice of filing (or such additional time as Landlord may consent to in
writing), either by paying and discharging such lien or by posting a bond or such other security
as may be reasonably satisfactory to the Landlord. If Tenant shall fail to remove same within
with said time period; Landlord may take such action as Landlord deems necessary to remove
the same and the entire cost thereof shall be due and payable by Tenant to Landlord as additional
rent and shall be due and payable in full no later than 30 days from receipt of the invoice for such
costs.
6.4 Drawings; Approval. Prior to the application for any building permit for
installation or replacement of Tenant's Facilities, Tenant shall submit Tenant's construction and
antenna drawings to Landlord to approve the construction and antenna installations. Landlord
shall review such drawings within twenty (20) working days of receipt of plans. If Landlord
does not request changes within such 20-day period, approval shall be deemed given. Such
approval shall be deemed conceptual and programmatic only and shall not relate to structural or
other building code compliance. Nothing in this paragraph shall be deemed to be a substitute for
or waive or reduce applicable regulatory reviews, inspections and approvals.
6.5 Workmanlike Construction. Tenant agrees that all work performed under this
agreement shall be completed in a neat,workmanlike manner consistent with good engineering
practices. All costs for the installation, maintenance and repair of Tenant's Facilities, including,
but not limited to,the cost of extending electrical service to Tenant's equipment, will be paid by
the Tenant. Tenant shall maintain the Premises in a clean and orderly manner.
6.6 Title to Various Items. Landlord shall, at all times,be the sole and exclusive
owner of the Property. The Tenant shall at all times be the sole and exclusive owner of Tenant's
Facilities. All of Tenant's Facilities shall remain Tenant's personal property and are not fixtures.
6.7 Utilities. Tenant shall pay for the electricity it consumes in its operations at a rate
charged by the servicing utility company. Tenant shall have the right to draw electricity, by
separate meter or by submeter, and other utilities from the existing utilities on the Property or
obtain separate utility service from any third party provider that will provide service to the
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Property (including a standby power generator for Tenant's exclusive use). Landlord agrees to
sign such documents or easements as may be required by said provider to provide such service to
the Premises, including the grant to Tenant or to the provider at no cost to the Tenant, of an
easement in, over across or though the Land as required by such servicing utility company to
provide utility services as provided herein.
6.8 Landlord Maintenance. The Landlord reserves the right to perform, at its sole
expense, structural repairs, maintenance or cosmetic maintenance, including painting, on its
Water Tower structure or the Property. Landlord shall give Tenant at least one hundred twenty
(120)days' prior written notice of the intended work. Tenant shall, at Tenant's cost and expense,
temporarily relocate and continue to operate its antennas, or otherwise to secure the Antenna
Facilities generally, to protect them from damage and to allow Tenant's continued operation.
Tenant will be permitted to install a reasonably necessary temporary facility on the Property to
keep its Antenna Facilities operational, provided it complies with the non-disturbance provisions
of this Agreement. Any repairs or maintenance will be conducted by Landlord as diligently and
expeditiously as possible.
7: Taxes.
Tenant shall be solely responsible for and shall timely pay all personal property taxes
levied and assessed against it or its personal property. Tenant shall not be responsible for any
real estate, special assessments or similar taxes relating to the Property except to the extent
permitted or required by statute for the value of Tenant's leasehold estate.
If the methods of taxation in effect at the Commencement Date of the Lease are altered so
that in lieu of or as a substitute for any portion of the real property taxes and special assessments
now imposed on the real property there is imposed a tax upon or against the rentals payable by
Tenant to Landlord, Tenant shall pay those amounts in the same manner as provided for the
payment of real property taxes.
8: Mutual Indemnification.
Landlord and Tenant each agree to indemnify and hold harmless the other party from and
against any and all claims, damages, cost and expenses, including reasonable attorney fees,to the
extent caused by or arising out of any acts or omissions in the operations or activities on the
Property for which the indemnifying party, or the employees, agents, contractors, licensees,
tenants and/or subtenants of the indemnifying party, may be held liable under the laws of the
State of Illinois, or a breach of any obligation of the indemnifying party under this Lease,
specifically including Tenant's obligation to provide Landlord with notice of any lapse in
insurance coverages required by Article 9 hereof. If Tenant fails to provide the notice required
by Section 9.4 hereof, and any required insurance lapses, the indemnification obligations of this
Paragraph 8 shall include losses incurred by Landlord for Tenant's failure to provide the required
notice. Notwithstanding the foregoing, this indemnification shall not extend to indirect, special,
incidental or consequential damages, including, without limitation, loss of profits, income or
business opportunities to the indemnified party or anyone claiming through the indemnified
party. The indemnifying party's obligations under this section are contingent upon its receiving
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written notice within sixty (60) days of any event giving rise to an obligation to indemnifying the
other party. Notwithstanding anything to the contrary in this Lease, the parties hereby confirm
that the provisions of this section shall survive the expiration or termination of this Lease. Not in
limitation of the foregoing, Tenant agrees to pay for any costs incurred by the Landlord,
including but not limited to attorneys' fees, experts' fees, and other related costs associated with
administrative hearings or litigation in the event any suit is filed or claim made by a third party
regarding the manner of use and possession of the Leased Premises authorized by this
Agreement. Except for the indemnity obligations set forth in this Lease, and otherwise
notwithstanding anything to the contrary in this Lease, Tenant and Landlord each waives any
claims that each may have against the other with respect to consequential, incidental or special
damages, however caused, based on any theory of liability. Additionally, neither party shall be
required to indemnify the other for negligence or willful misconduct of such party, or its
employees, contractors or agents.
9. Insurance.
9.1 Types; Limits. During the term of the Lease, Tenant shall maintain, or cause to
be maintained, in full force and effect and at its sole cost and expense, the following types and
limits of insurance:
(a) Worker's compensation insurance meeting applicable statutory requirements and
employer's liability insurance with minimum limits of One Million Dollars ($1,000,000) for each
accident and for each disease.
(b) Commercial general liability insurance with minimum limits of Two Million
Dollars ($2,000,000) for each occurrence, and Two Million Dollars ($2,000,000.00) in the
aggregate, of bodily injury, personal injury and property damage. The policy shall provide
blanket contractual liability insurance, and shall include coverage for products and completed
operations liability, coverage for property damage from perils of explosion, collapse or damage
to underground utilities, commonly known as XCU coverage.
(c) Automobile liability insurance covering all owned, hired, and non-owned vehicles
in use by Tenant, its employees and agents, with personal protection insurance and property
protection insurance to comply with the provisions of state law with minimum limits of Two
Million Dollars ($2,000,000) as the combined single limit for each occurrence for bodily injury
and property damage.
(d) Umbrella insurance providing coverage over the commercial general liability and
automobile liability coverage required herein, with minimum limits, on an occurrence basis and
in the aggregate, of not less than Five Million Dollars ($5,000,000.00).
(e) At the start of and during the period of any construction, builders all-risk
insurance, together with an installation floater or equivalent property coverage covering cables,
materials, machinery and supplies of any nature whatsoever which are to be used in or incidental
to the installation of the Tenant's Facilities. Upon completion of the installation of the Tenant's
Facilities, Tenant shall substitute for the foregoing insurance policies of fire, extended coverage
and vandalism and malicious mischief insurance on the Tenant's property. The amount of
insurance at all times shall be representative of the insurable values installed or constructed.
(f) All policies other than those for Worker's Compensation shall be written on an
occurrence and not a claims-made basis.
(g) The coverage amounts set forth above may be met by a combination of
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underlying and umbrella policies so long as in combination the limits equal or exceed those
stated.
9.2 Additional Insureds. All policies, except for property, employer's liability,
business interruption and worker's compensation policies, shall include Landlord and all
associated, affiliated, allied and subsidiary entities of Landlord, now existing or hereafter
created, and their respective officers, and boards as their respective interests may appear as
primary, non-contributory additional insureds (herein referred to as the "Additional Insureds") as
respects this Lease. The foregoing insurance coverages shall also contain a severability-of-
interests clause.
9.3 Evidence of Insurance. Certificates of insurance for each insurance policy and
all related endorsements (upon request) required to be obtained by Tenant in compliance with
this paragraph, shall be provided to Landlord upon Landlord's request, no more than annually,
during the term of the Lease. Tenant shall immediately advise Landlord of any claim or
litigation that may result in liability to Landlord.
9.4. Cancellation of Policies of Insurance. All insurance policies maintained
pursuant to this Lease shall provide at least thirty (30) days prior written notice of cancellation
and 10 days of non-renewal.
9.5 Insurance Companies. All insurance shall be effected under valid and
enforceable policies, insured by insurers authorized to do business by the State of Illinois or
surplus line carriers on the State of Illinois Insurance Commissioner's approved list of companies
qualified to do business in the State of Illinois. All insurance carriers and surplus line carriers
shall be rated A-or better by A.M. Best Company.
9.6 Deductibles. If any of the foregoing insurance policies are written with
deductibles or retentions, Tenant agrees to indemnify and save harmless Landlord and Additional
Insureds from and against the payment of any deductible or retention and from the payment of
any premium on any insurance policy required to be furnished by this Lease.
9.7 Contractors. Tenant shall require that each and every one of its contractors and
their subcontractors who perform work on the Premises to carry, in full force and effect, workers'
compensation, commercial general liability and automobile liability insurance coverage of the
type which Tenant is required to obtain under the terms of this paragraph with appropriate limits
of insurance. In the event Tenant elects not to require such insurance from its contractors,
Tenant's insurance provided hereunder shall also contain a waiver of subrogation as such
coverage relates to claims arising from contractors and subcontractors acts or omissions.
9.8 Review of Limits. Once during each Renewal Term, Landlord and Tenant shall
mutually determine whether to make any increases in Tenant's insurance policy limits, in
accordance with generally accepted industry standards, for all insurance to be carried by Tenant
as set forth in this Article. In the event Landlord and Tenant cannot mutually agree upon the
amount of said insurance increases,then Tenant agrees that all insurance policy limits as set forth
in this section shall be adjusted for increases in the cost of living.
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9.9 Non-Waiver. Under no circumstances shall the Landlord be deemed to have
waived any of the insurance requirements of this Lease by: (A) allowing any work to commence
before receipt of certificates of insurance or additional insured endorsements; (B) by failing to
review any certificates or documents received; or (C) by failing to advise the Tenant that any
certificate of insurance fails to contain all of the required insurance provisions or is otherwise
deficient in any manner. The Tenant agrees that the obligation to provide the insurance required
by these documents is solely Tenant's responsibility and that Tenant's obligations cannot be
waived by any act or omission of the Landlord.
10. Landlord's Representations.
In order to induce Tenant to enter into this Lease, Landlord covenants, represents and
warrants, as of the date of this Lease and throughout its Term, as follows:
10.1 Authority. Landlord is solvent and the owner of the Property in fee simple.
Landlord has full authority to execute, deliver, and perform this Lease and is not in default of
any mortgage affecting this Property.
10.2 No Condemnation. Landlord has received no actual or constructive notice of
any condemnation or eminent domain proceedings or negotiations for the purchase of the
Property, or any part, instead of condemnation.
10.3 No Unrecorded Liens. Landlord has not performed and has not caused to be
performed any work on the Property during the six (6) months preceding the date of this Lease
which could give rise to any mechanic's or materialmen's liens which has not already been paid
in full. There are no unrecorded easements or agreements affecting the Property.
10.4 Maintenance. Landlord will maintain and repair the Property and access thereto,
the water tower, and all areas of the Premises where Tenant does not have exclusive control, as
required by, and in compliance with, applicable law.
11: Easements.
11.1 Granted. For the Term and Renewal Terms of this Lease, Landlord grants to
Tenant, and its agents, employees, contractors, guests and invitees, a non-exclusive right and
easement for pedestrian and vehicular ingress and egress across that portion of the Property
described in Exhibit "B". Tenant and its authorized representatives shall have the right of ingress
and egress to and from the Premises twenty-four (24) hours a day, seven (7) days a week, at no
charge, on foot or motor vehicle, including trucks, and for the installation and maintenance of
utility wires, poles, cables, conduits, and pipes under or along a twelve (12) foot wide non-
exclusive easement extending from the nearest public right of way to the demised Premises.
Notwithstanding the preceding sentence, all non-emergency work capable of being scheduled in
advance shall only occur between 8:00 a.m. and 6:00 p.m.; only emergency repairs may be
conducted between 6:00 p.m. and 8:00 a.m. All utilities for Tenant's Facilities will be
constructed or installed so as to be underground. Any installation activity shall be coordinated
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with Landlord so as not to disrupt Landlord's activities. To the extent practicable, all easements
herein described shall be parallel and coterminous so as to cause the least interference with the
Landlord's use of the Property.
11.2 Modifications. If subsequent to the date of this Lease it is reasonably determined
by Tenant that any access or utility easement obtained does not or no longer adequately serves
the Premises and Tenant's use thereof, Landlord agrees to cooperate with Tenant to relocate such
easements where practical at Tenant's sole cost and expense. In the event the Landlord is unable
to relocate any of the necessary easements, then at Tenant's option this Lease may be terminated
upon thirty (30) days prior written notice to Landlord. Notwithstanding anything to the contrary
contained herein, Tenant shall be required to restore the location of the prior easement to its
original condition, reasonable wear and tear and damage by casualty not caused by Tenant
excepted. If such prior easement was used by parties other than Tenant, Tenant and such parties
shall share pro-rata in the costs to restore.
12: Assignment.
Tenant may not assign, sublease or otherwise transfer all or any part of its interest in the
Lease or in the Property without the prior written consent of Landlord; provided, however, that
Tenant may assign or sublet its interest without consent to its parent company, any subsidiary or
affiliate of it or its parent company, or to any successor-in-interest or entity acquiring fifty-one
percent (51%) or more of its stock or assets, or to Tenant's parent, affiliates or subsidiaries,
subject to any financing entity's interest, if any, in this Lease as set forth in Paragraph 27 below,
upon written notice to Landlord, subject to the assignee assuming all of Tenant's obligations
herein.
Notwithstanding anything to the contrary contained in this Lease, Tenant may assign,
mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Lease to
any financing entity, or agent on behalf of any financing entity to whom Tenant (i) has
obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced
by bonds, debentures, notes, or similar instruments, or(iii) has obligations under or with respect
to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof.
Landlord may assign this Lease upon written notice to Tenant, subject to the assignee
assuming all of Landlord's obligations herein, including but not limited to, those set forth in
Section 27 below. Upon assignment by either Tenant or Landlord such party shall be relieved of
all future performance, liabilities, and obligations under this Lease.
13: Defaults.
13.1 By Tenant. In the event of default under this Lease by Tenant, Landlord shall be
entitled to remedies as shall then be provided by law; and provided that prior to, and as a
condition precedent to, the exercise of any remedy, Landlord shall give to Tenant written notice
of default to Tenant and the nature of the default and Tenant shall have thirty(30)days (or, if the
default cannot be cured within thirty (30) days, a longer period as shall be necessary to cure the
default, acting with due diligence), after receipt of the notice within which to commence to cure
the default, during which period no remedy shall be pursued. If Tenant fails to cure or
commence to cure a default within the period stated above, in addition to any other remedies
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available to Landlord, the Landlord may elect to terminate this Lease upon six (6) months prior
written notice to Tenant at one hundred ten percent(110%)of the then current monthly rent.
13.2 By Landlord. In the event there is a breach by Landlord with respect to any of
the provisions of this Agreement or its obligations under it, Tenant shall give Landlord written
notice of such breach. After receipt of such written notice, Landlord shall have thirty (30) days
in which to cure any such breach, provided Landlord shall have such extended period as may be
required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires
more than thirty (30) days and Landlord commences the cure within the thirty (30) day period
and thereafter continuously and diligently pursues the cure to completion. Tenant may not
maintain any action or effect any remedies for default against Landlord unless and until Landlord
has failed to cure the breach within the applicable cure period. Notwithstanding the foregoing to
the contrary, it shall be a default under this Agreement if Landlord fails, within seventy two (72)
hours after receipt of written notice of such breach, to perform an obligation required to be
performed by Landlord if the failure to perform such an obligation interferes with Tenant's
ability to conduct its business in the Leased Premises or operate Tenant's Facilities consistent
with its use under this Lease; provided, however, that if the nature of Landlord's obligation is
such that more than seventy two (72) hours after such notice is reasonably required for its
performance, then it shall not be a default under this Agreement if performance is commenced
within such seventy two (72) hour period and thereafter diligently pursued to completion.
Notwithstanding the foregoing to the contrary, the remedy for all breaches arising from RF
interference shall be solely in the manner described in Section 25. Except as otherwise provided
in this Lease, Tenant's sole and exclusive remedies for any Landlord default shall be,
alternatively,termination of this Lease or specific performance.
14: Condemnation.
In the event of any condemnation of the Property, Tenant may terminate this Lease upon
fifteen (15) days written notice to Landlord if such condemnation may reasonably be expected to
disrupt Tenant's operations at the Premises for more than forty-five (45)days. Tenant may on its
own behalf make a claim in any condemnation proceeding involving the Premises for losses
related to the antennas, equipment, its relocation costs and its damages and losses (but not for the
loss of its leasehold interest). Any such notice of termination shall cause this Lease to expire
with the same force and effect as though the date set forth in such notice were the date originally
set as the expiration date of this Lease and the Parties shall make an appropriate adjustment, as of
such termination date,with respect to payments due to the other under this Lease.
15: Casualty
In the event the Property is or Tenant's Facilities are destroyed or damaged in whole or in
part by casualty during the Term or Renewal Terms of this Lease then, at Tenant's option
(exercised by notice to Landlord), this Lease may be terminated as of the date of the event or at
any time within ninety (90) days thereafter and no further Rent shall be due under the
termination section or any other section of this Lease. If Landlord is going to repair the damage
and Tenant does not terminate this Lease rent shall abate during the time that Tenant cannot
operate its facilities, but nothing herein shall be construed to extend or toll the Term of this
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Lease.
16: Quiet Enjoyment.
Landlord covenants and agrees that upon payment by the Tenant of the rent under
this Lease and absent Tenant's default beyond all applicable cure times under this Lease of the
covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Property, the rights, and privileges granted for the term
demised without hindrance or interference by Landlord or any other person and Landlord shall
perform all of its obligations under this Lease.
17: Subordination,Non-Disturbance and Attornment.
17.1 Existing Encumbrances. Within thirty (30) days after the execution of this Lease,
Landlord shall deliver to Tenant executed original of non-disturbance and attornment agreements
with Tenant in form satisfactory to Tenant, in Tenant's sole discretion, from any existing mortgage
holder or other party holding an interest in the Property which may take precedence over Tenant's
interest in the Property. Failure by the Landlord to deliver any required non-disturbance and
attornment agreement shall entitle Tenant, at Tenant's option, to terminate this Lease at any time
thereafter and to obtain a refund of all Rent and any other amounts paid to Landlord during the
then current term, and, in any case, Tenant shall have no obligation to pay Rent or other amounts
under this Lease until Landlord delivers the executed non-disturbance and attornment agreement.
17.2 Subsequent Financing. Tenant shall enter into recordable subordination, non-
disturbance and attornment agreements with the holders of any mortgage, trust deed, installment
sale contract or other financing instrument dated after the date of this Lease, on Tenant's
commercially reasonable form.
18: Termination.
18.1 By Tenant. In addition to termination as a result of action or inaction pursuant to
other parts of this Lease, Tenant may terminate this Lease: (a) sixty (60) days prior to the
expiration of the then current term whereupon the Lease shall be deemed canceled upon the
expiration of the then current term or (b) immediately, without payment of any rent not yet due
following written notice to Landlord of either (i) Tenant's inability to secure necessary zoning
and/or Tenant has lost, been denied, or has had cancelled,withdrawn or terminated said approvals,
or if Tenant fails to satisfy any necessary authorization to use the Property as contemplated in
this Lease, or (ii) if Tenant is unable to occupy and utilize the Premises due to an action of the
FCC, including without limitation, a take back of channels or change in frequencies or, (iii) if
Tenant determines that the Premises are not appropriate for its operations for technological
reasons, including, without limitation, signal interference. Economic hardship shall not be
grounds for termination for cause.
18.2 By Landlord. Landlord may terminate this Lease if (i) there is a written
determination by a mutually agreeable qualified engineer (using appropriate instruments which
are properly calibrated) that the power density levels emitted from Tenant's equipment located
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on the Property exceed the FCC maximum permissible exposure level limitation which pertain to
the general public and as is specified in the applicable FCC regulations regarding uncontrolled
areas and (ii) the Tenant is unable to bring its equipment into compliance with such standard
within sixty (60) days after receipt of a written copy of Landlord's engineering findings; or if
Tenant abandons the leased Premises for a period of twelve (12) consecutive months.
18.3 Removal of Equipment. Upon the expiration of this Lease, or its earlier
termination or cancellation for any reason, Tenant shall remove Tenant's Facilities installed by
Tenant for its use except that, if Tenant is in agreement, such equipment or buildings which the
Landlord may request in writing be left in place on the Premises for Landlord's future use. In such
event, the retained equipment or buildings shall become the personal property of the Landlord and
shall be conveyed at the termination of the Lease in its "AS IS" and "WHERE IS" condition by a
duly-executed bill of sale.
In the event the Landlord determines, in its sole discretion, to decommission and remove
the water tower,the Landlord reserves the right to require Tenant, at Tenant's expense, to remove
Tenant's Facilities and relocate Tenant's Facilities to a new location owned by the Landlord as
mutually agreed to by the Parties. If the Parties cannot agree on a substitute location for
Tenant's Facilities within 90 days after notice to Tenant of Landlord's intent to remove the water
tower,the Lease shall terminate as provided herein.
18.3 Removal of Equipment. Upon the expiration of this Lease, or its earlier
termination or cancellation for any reason, Tenant shall at its sole expense remove from the
Property all of its antennae, antenna structures, transmitting and receiving equipment,
transmitting lines, and other personal property, fixtures and other improvements. Tenant shall
have up to thirty (30) days after the effective date of the expiration, termination, cancellation to
complete removal of all items. If Tenant shall remain in possession of the Premises after the
expiration of this Lease or any Renewal Term without a written agreement, such tenancy shall be
deemed a month-to-month tenancy, terminable upon thirty (30) days written notice, with rent
increased to 125% and otherwise under the same terms and conditions of this Lease. Tenant
shall be required to remove only its communications equipment, including radio cabinets,
antennas, connecting cables, and other personal property. Tenant shall not be required to remove
any equipment platforms, slabs, concrete pads, foundations, below-grade improvements,
underground utilities, or related infrastructure which exists as of the Commencement Date of this
Lease and has been installed for or by existing tenants.
19: Cooperation.
Landlord agrees to cooperate with Tenant in any efforts by Tenant to secure any
governmental permits necessary to use the Property as contemplated in this Lease, and to join in
any application or other document reasonably requested by Tenant within ten (10) days of
Tenant's written request. At any time after the date of this Lease or the Commencement Date,
either party shall execute or cause to be executed any commercially reasonable documents, or
take or cause to be taken any actions, reasonably necessary to carry out the intent of this Lease.
20: Lease Construction.
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This Lease shall be construed in accordance with the laws of the State of Illinois.
In the event that any provisions of this Lease are legally unenforceable, the other provisions shall
remain in effect. This Lease has been prepared by both parties and shall not be construed under
the rule of construction whereby a document is construed against the author thereof.
21: Entire Binding Understanding; No Oral Modification.
All prior understandings and agreements between the parties are merged into this Lease,
and this Lease may not be modified orally or in any manner other than by an agreement in
writing signed by both parties. Presentation of this Lease shall not constitute an offer unless the
Lease has been signed by Tenant, and this Lease shall not be binding until executed by both
Landlord and Tenant and approved in the manner required by law.
22: Successors.
Subject to the provisions regarding assignment,this Lease shall be binding upon, and
inure to the benefit of,the successors-in-interest and permitted assigns or subtenants of the
parties and any grantee of Landlord.
23: Notices.
All notices, requests and other writings required under this Lease (including any notices
of renewal, or termination rights) must be in writing and shall be deemed validly given upon the
earlier of (i) upon receipt if personally delivered or sent by next-business-day delivery via a
nationally recognized overnight courier to the addresses in Section 1 or (ii) the second business
day after the date posted if sent by certified mail, return receipt requested, addressed to the other
party with copies as set out in the Landlord's Address and Tenant's Address (or any other
address within the United States that the party to be notified may have designated to the sender
by like notice).
24: Performance.
Time is of the essence in this Lease.
25: Broadcast Interference.
25.1 Definition. As used in this Lease, "interference" with a broadcasting activity
means:
(a) Interference within the meaning of the rules and regulations of the Federal
Communications Commission (FCC)then in effect, or
(b) A material impairment of the quality of either sound or picture signals on a
broadcasting activity as may be defined by the FCC at any hour during the period of operation of
activity, as compared with that which would be obtained if no other broadcaster were
broadcasting from the Property or had any equipment on the Property.
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25.2 Interference.
(a) Tenant shall operate Tenant's Facilities in a manner that shall not cause physical,
mechanical, radio frequency or signal interference to Landlord and other existing tenants or
licensees of the Property, provided that their installation predates the execution of this Lease and
as long as those existing tenants or licensees continue to operate within their respective
frequencies and in accordance with all applicable laws and regulations. All operations by Tenant
shall be in compliance with all Federal Communication Commission("FCC")requirements.
(b) Subsequent to the installation of the Tenant's Facilities, Landlord shall not permit
itself, its tenants or licensees to install new equipment on the Property if such equipment is likely
to cause physical, mechanical, radio frequency or signal interference with Tenant's operations.
Such interference shall be deemed a material breach by Landlord. In the event interference
occurs, Landlord agrees to take all reasonable steps necessary to eliminate such interference in a
reasonable time period, including providing notice to other tenants, lessees or licenses suspected
of causing interference to Tenant's Facilities or Tenant's operations within 24 hours following
Landlord's receipt of notification from Tenant of such interference. Landlord shall have the
right to install equipment that is in compliance with all FCC standards and regulations.
Notwithstanding anything herein to the contrary, Landlord specifically reserves the right to
install and co-locate public safety equipment on the Property for the purpose of improving police
and fire dispatch services and such equipment shall enjoy absolute priority with respect to
interference, provided that such equipment is operating within its FCC-licensed spectrum.
(c) Should Landlord claim interference with their existing uses due to Tenant's Facilities,
Tenant shall, at its sole cost and expense, cooperate with Landlord to determine if Tenant's
Facilities are the source of such claimed interference. Such cooperation shall include but not be
limited to inter-modulation studies. Should it be determined by such studies that such
interference is directly attributable to the operations of the Tenant's Facilities on the Property,
Tenant, at its sole cost and expense, shall use its best efforts in taking measures to modify the
Tenant's Facilities in order to mitigate such interference to Landlord's reasonable satisfaction.
(d) Tenant's equipment may not cause any interference to the operation of any public
safety equipment such as police, fire department and 9-1-1 dispatch, as long as such equipment is
operating within applicable legal guidelines and requirements. In the event Landlord's
emergency radio systems cause interference to Tenant's Facilities, Landlord will work with
Tenant to secure a reasonably acceptable alternate location on Landlord's property that is
suitable for Tenant's use and acceptable to Landlord if such interference occurs. In the event
Landlord's emergency radio systems cause interference to Tenant's Facilities, Tenant's sole
remedy shall be to terminate this Lease upon prior written notice to Landlord. Alternatively,
Landlord may work with Tenant to secure an alternate location on Landlord's property that is
suitable for Tenant's use and acceptable to Landlord, in its sole discretion, if such interference
occurs.
26: Environmental Matters.
26.1 Definition. For purposes of this Lease:
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(a) "Applicable Environmental Laws" includes the Comprehensive Environmental
Response, Compensation, and Liability Act, any so called "Super-fund" or "Super-lien" law, or
any other Federal, state or local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance or material, as now or at any time hereafter in effect.
(b) "Hazardous Material" includes any hazardous, toxic or dangerous waste,
substance or material as that term is defined in Applicable Environmental Laws.
26.2 No Hazardous Material. Neither the Landlord nor, to the best knowledge of
Landlord, any other person has ever caused or permitted any Hazardous Material to be placed,
held, located or disposed of on, under or at the Property or any part thereof in violation of
Applicable Environmental Laws nor any part thereof has ever been used by the Landlord, or to
the best knowledge of the Landlord, by any other person either as a permanent or temporary
dump site or storage site for any Hazardous Material.
26.3 Indemnity. Tenant agrees to be responsible for all losses or damage caused by any
Hazardous Substances that it may bring onto the Property and will hold harmless and indemnify
Landlord for all such losses or damages including the cost of any investigation or remediation, or
other actions required to comply with applicable law. Landlord agrees to be responsible for all
losses or damage caused by any Hazardous Substances it may bring onto the Property, and shall
hold Tenant harmless and indemnify Tenant for losses or damage caused by Hazardous
Substances, including the cost of any investigation or remediation, or other actions required to
comply with applicable law,except those brought onto the Property by Tenant.
26.3 Indemnity. Each party agrees to defend, indemnify and hold harmless the other
from and against any and all administrative and judicial actions and rulings, claims, causes of
action, demands and liability including, but not limited to, damages, costs, expenses,
assessments, penalties, fines, losses,judgments and reasonable attorney fees that the indemnitee
may suffer or incur due to the existence or discovery of any Hazardous Material on the Property
or the migration of any Hazardous Material to other properties or the release of any Hazardous
Material into the environment, that relate to or arise directly from the indemnitor's activities on
the Property. The indemnifications in this section specifically include, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup, remedial,
removal or restoration work required by any governmental authority.
26.4 Survival. The provisions of and undertakings and indemnification set out in this
Section shall survive the termination of this Lease.
27. Waiver of Landlord's Lien.
(a) Landlord waives any lien rights it may have concerning the Tenant's Facilities
which are deemed Tenant's personal property and not fixtures, and Tenant has the right to
remove the same at any time without Landlord's consent.
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(b) Landlord acknowledges that Tenant may enter into a financing arrangement
including promissory notes and financial and security agreement for the financing of the
Tenant's Facilities (the "Collateral") with a third party financing entity (and may in the future
enter into additional financing arrangements with other financing entities). In connection
therewith, Landlord (i) consents to the installation of the Collateral; (ii) disclaims any interest in
the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from
execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and
that such Collateral may be removed at any time without recourse to legal proceedings.
28. Memorandum of Agreement
Landlord acknowledges that a Memorandum of Agreement will be recorded by Tenant in
the official records of the County where the Property is located in a format as attached to Exhibit
«D„
29. Attorneys' Fees
The prevailing party in any litigation or other legal proceedings arising under this Lease
(including any appeals and any insolvency actions) shall be entitled to reimbursement from the
non-prevailing party for reasonable attorneys' fees and expenses.
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AGREED as of the later of the two dates below:
LANDLORD TENANT
Village of Oak Brook, T-Mobile Central LLC,
an Illinois Municipal corporation a Delaware limited liability company
f
B . By: 1 '4 k
Name: CC f 2 goU Name: Fais Afridi
Sen*or Director
Title: Title: Engineering & Operations
Date: � '��—(� Date:
Tax ID: 36-6009534 ,��ek'-• l�u�a-..1
T.H1ott1lP Legal Approval
Lors owed
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T-Mobile Site No.CH75619A
EXHIBIT "A"
DESCRIPTION OF THE PROPERTY
Exhibit "A"to the Lease dated 144V ST Zl , 2019, between the
Village of Oak Brook, an Illinois municipal corporation, as Landlord, and T-Mobile Central,
LLC, a Delaware limited liability company, as Tenant.
The Property is described and/or depicted as follows:
Common address: 2011 Windsor Drive, Oak Brook, IL 60523
P.I.N. 0624404001
T-Mobile Site No.CH75619A
EXHIBIT "B"
DESCRIPTION OF PREMISES
Exhibit"B"to the Lease dated ASST zl ,2019, between the
Village of Oak Brook, an Illinois municipal corporation,as Landlord, and T-Mobile Central
LLC,a Delaware limited liability company, as Tenant.
The Premises are described and/or depicted as attached hereto.
[Per Section 11.1,this Exhibit needs to include easements granted to Tenant.]
To be entered at a later date.
T-Mobile Site No.CH75619A
EXHIBIT "C"
PLANS
Exhibit"C"to the Lease dated 4/�Z 2l_, 2019, between the
Village of Oak Brook, an Illinois municipal corporation, as Landlord, and T-Mobile Central
LLC,a Delaware limited liability company, as Tenant.
To be inserted at a later date following Village's approval.
T-Mobile Site No.CH75619A
EXHIBIT "D"
MEMORANDUM OF LEASE
Exhibit"D"to the Lease dated , 2019, between the
Village of Oak Brook, an Illinois municipal corporation, as Landlord, and T-Mobile Central
LLC, a Delaware limited liability company, as Tenant.
To be inserted at a later date following Village's approval.
4840-7554-4940,v. 1