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HomeMy WebLinkAbout04-192 a Resolution No. 04-192 RESOLUTION AUTHORIZING EXECUTION OF A NON-EXCLUSIVE WATER TOWER ATTACHMENT LEASE AGREEMENT (Alft Lane Water Tower) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that David M. Dorgan, City Manager, and Dolonna Mecum, City Clerk,be and are hereby respectively authorized and directed to execute a Non-exclusive Water Tower Attachment Lease Agreement with Fox Valley Internet, Inc. for the premises commonly known as the Alft Lane Water Tower, Elgin, Illinois, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: July 14, 2004 Adopted: July 14, 2004 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk NON-EXCLUSIVE WATER TOWER ATTACHMENT LEASE AGREEMENT ALFT LANE WATER TOWER THIS NON-EXCLUSIVE TOWER ATTACHMENT LEASE AGREEMENT ("Lease") is executed this 14th day of July 2004, by and between the City of Elgin, an Illi- nois Municipal Corporation ("City") and Fox Valley Internet, Inc. ("Company"). WHEREAS, City owns an elevated water tank located on Alft Lane, Elgin, Illinois commonly referred to as the Alft Lane Water Tower, upon which Company desires to mount certain of Company's antennae, other equipment and related devices; and WHEREAS, Company desires to lease from City a certain designated space on City's elevated water tank; and WHEREAS, City retains the right to contract with other parties to attach equip- ment on the City's elevated water tank so long as said equipment does not cause inter- ference with reception of Company's equipment; and WHEREAS, City desires to allow a designated space for Company's equipment on its elevated water tank and to insure Company's equipment does not interfere with City's daily operations and maintenance; and WHEREAS, City desires to consolidate all existing communications antennas and equipment with Company's proposed installation to improve the aesthetics of the ele- vated tank; and WHEREAS, City desires to be indemnified and held harmless from and against any and all damages caused by the operation, maintenance or installation of any and all equipment. NOW THEREFORE, for and in consideration of the terms and mutual promises herein contained, and for other good and valuable consideration, the receipt and suffi- ciency of which are hereby acknowledged, City and Company agree as follows: 1. Property. City hereby grants Company the right to install, maintain, operate and remove communication equipment and appurtenances as designated on City's elevated water tank on City's property which is more particularly described in Exhibit A (the "Property"), attached to and incorporated into this agreement by reference. 2. Use. Company shall be permitted to install antennae, cabling, emergency power generators and related equipment on the Property and to install or improve utili- ties on the Property. A description of the equipment, mounting height of the an- tennae, and other personal property owned by Company which Company shall be permitted to locate on a designated space on the City's elevated tank located on the Property and a diagram on installation on the elevated water tank located on the Property are attached hereto as Exhibit B (the "Equipment"), attached to and incorporated into this agreement by reference. The permission granted to the Company for installation of Equipment is contingent upon the approval of the Company's plans that demonstrate relocation of existing communication equip- ment (to include coax cable, antennae, brackets, hardware, etc.) that may be owned by other communication carriers. All costs and labor associated with these modifications shall be the responsibility of the Company and shall be con- sidered to be an integral part of this agreement. Any agreements among various communication carriers associated with these modifications shall be the respon- sibility of the Company. Prior to installation, all installation plans, including plans for the attachment of Company's Equipment for relocation of existing equipment owned by other carriers to City's elevated tank, and any personal property owned by the Company that is to be located on the Property or at- tached to the elevated water tank must be approved by the City, which approval shall not be unreasonably conditioned, withheld or delayed by City. In the event that Company has not received notice of any objection or modifications from City to the plans within sixty (60) days of the date of the receipt of the plans by the City, plans shall be deemed effectively approved by the City and Company may commence installment of the Equipment. Any personal property owned by Company, whether fixed or attached to the Property or the elevated water tank shall remain the exclusive property of Company without regard to whether the personal property is described on Exhibit B. The Company's Equipment shall not be permanently attached or welded to City's elevated water tank, unless prior consent has been granted to Company by the City. If welded attachments are ap- proved, Company shall be responsible for replacing interior or exterior tank coat- ings that are damaged by welding. All replacement of coatings shall meet the ex- act specifications of the existing tank coating and must be completed within sixty (60) days of the time that welding on the tank occurs. All costs associated with the new coatings, including City's operational costs, including, but not limited to draining, cleaning, disinfecting and draining the elevated tank, shall be borne by Company. 3. City hereby grants Company designated access to the elevated water tank and the Property for the purpose of installing and maintaining the Equipment and appurtenances. Company shall have a non-exclusive right of ingress and egress to and from the Property at all times provided City provides prior consent to such access. The City will not issue keys or pass codes to Company for any such pre-approved access to the Property. If Company requires access to Property outside City's normal business hours, Company shall pay City a service fee of 2 Fifty Dollars ($50.00) plus an hourly fee of Thirty-five Dollars ($35.00) for each hour or portion of an hour City is required to provide Company with access to the Property outside City's normal business hours. 4. Initial Term. The initial term of this lease shall be for a period of three (3) years commencing on the day of execution of this agreement ("Initial Term'). 5. Renezval Terms. Company shall have the right to extend this lease for an addi- tional five (5), two (2)-year Renewal Terms ("Renewal Terms"); a ten (10)-year to- tal renewal term. The Renewal Terms shall be on the same terms and conditions as set forth in this lease except that rent shall increase as provided in paragraph 5(b). This lease shall automatically be renewed for the Renewal Terms unless (1) Company notifies City of Company's intention not to renew the lease at least forty-five (45) days prior to the expiration of the Initial Term or the Renewal Term which is then in effect, or (2) City notifies Company of City's intention not to renew the lease at least forty-five (45) days prior to the expiration of the Initial Term or the Renewal Term which is then if effect. 6. Consideration. a. Initial Term. Company shall pay to City as rental the sum of FOUR THOUSAND EIGHT HUNDRED DOLLARS ($4800.00) per annum ("Lease Payment") for a designated space on City's elevated water tank located on the Property which shall include Company's right to use and occupy a designated ground space surrounding City's elevated water tank as approved by City. The Lease Payment may be invoiced monthly should Company desire. The Lease Payment shall be increased annually com- mencing one (1) year from the date of this lease at the rate of five percent (5%) of the previous year's rental, i.e., during year two the annual rental is $5040.00 and during year three the annual rental is $5292.00. The Lease Payment shall be paid annually in advance with the first such annual payment due on the commencement date and thereafter on each anniver- sary of the commencement date unless Company has requested monthly payments pursuant to this section. b. Renezval Term. In the event that Company elects to renew this lease as pro- vided in paragraph 4, rent shall be increased annually during the Renewal Terms during each year of each Renewal Term at the rate of five percent (5%) of the previous years Lease Payment. 7. Utilities. Company shall annually provide City with the annual estimated costs for all required electrical or other utility connections to support their Equipment 3 and such annual costs shall be paid by Company to City in addition to the an- nual rent in effect at such time. 8. Water Tank Purpose. Company recognizes that the primary function of the ele- vated water tank is to provide water storage for City and its customers. Com- pany understands that City may find it necessary from time to time to interrupt Company's use of the Premises for maintenance of the water tank. City shall provide Company with at least thirty (30) days' prior written notice for non- emergency maintenance ("Maintenance Period"), and, if necessary, Company agrees to remove its antennae or coaxial cable from the water tank provided that such removal shall not exceed a period of thirty (30) days. If required to remove its antennae or coaxial cable, Company shall have the right to relocate its anten- nas or coax in any manner as set out in this Paragraph and/or Company may terminate this Lease upon thirty (30) days' written notice to the City at any time during the thirty (30)-day relocation period and neither party shall have any fur- ther rights or obligations arising hereunder, except Company shall have the duty to remove its Equipment as set forth herein, and the parties shall have those rights and obligations that are to survive the termination of this lease. a. Company, at its sole cost and expense, may relocate temporarily its anten- nae to a different location on the water tank, provided, however, that such relocation shall not exceed the Maintenance Period and that relocation space is available on the water tank at a location sufficient to meet Com- pany's coverage or engineering needs and sufficient to allow maintenance performed by the City. Company shall be allowed to relocate to any loca- tion on the water thank that is not being used or intended to be used by City and will not cause interference with any other equipment located on the water tank. Such temporary location shall not interfere with the City's maintenance or any other users on the water tank; or b. Company, at its sole cost and expense, may use a temporary transmission site or "cell on wheels" on City's Property at a location sufficient to meet Company's coverage or engineering needs. 9. City's Representations and Warranties. City represents and warrants that all opera- tions conducted by City in connection with the elevated water tank and the Property including the lighting systems meet with all applicable rules and regu- lations of the Federal Aviation Administration and all applicable city, county and state codes and regulations. City shall maintain its lighting system in a proper operating and safe condition and shall comply with all notice requirements of the Federal Aviation Administration regarding the failure, malfunction or repair of the elevated water tank lighting systems. The cost of painting and repairing City's elevated water tank shall be borne by City unless the damage to the ele- 4 vated water tank is caused by Company, in which case Company shall repair such damage, or, at its option, Company may reimburse City for its costs and ex- penses incurred in such repair. The cost of painting Company's Equipment shall be borne by Company, and shall be performed routinely to maintain the appear- ance of the equipment and shall be in a color approved by the City. City will not be responsible for damage to the Company's equipment while performing main- tenance on the Property or the elevated water tank. In the event City fails to maintain the elevated water tank lighting systems as provided herein, Company shall have the right to withhold rental payments to City if City fails to make said lighting repairs after Company has given City thirty (30) days' written notice of the need to provide maintenance and repairs. Company shall have the right to apply such rents withheld hereunder to make the necessary repairs and provide the necessary maintenance, and Company shall not thereafter be responsible for the rents withheld to City. 10. Conditions Precedent. Company's obligation to perform under this Lease shall be subject to and conditioned upon: a. Company securing appropriate and necessary approvals for Company's intended use of the Property, as well as any future regulations or re- quirements, from the Federal Communications Commission, the Federal Aviation Administration and any other federal, state or local regulatory authority having jurisdiction over Company's proposed use of the Prop- erty; b. Company may conduct radio frequency propagation studies ("RF Stud- ies") on the Property. If the RF Studies do not provide results which meet with the personal satisfaction of Company, or if the RF Studies provide re- sults which demonstrate that operation of the Company's Equipment will disrupt or interfere with any program of the City, Company shall have no obligation to perform under this Lease; Company's inability to success- fully satisfy these conditions or the occurrence of any other event which effectively prohibits Company's intended use of the Property shall relieve Company from any obligation to perform under this Lease and shall enti- tle Company to restitution of any unearned rental payments which have been paid to City. 11. Termination. Except as otherwise provided herein, this Lease may be terminated without any penalty or further liability upon written notice as follows: a. By either party upon a default of any covenant or term hereof by the other party which default is not cured within sixty (60) days of receipt of written notice of default (without, however, limiting any other rights available to 5 the parties pursuant to other provisions hereof); provided, that if the de- faulting party commences efforts to cure the default within such period, the non-defaulting party shall no longer be entitled to declare a default; b. Upon thirty (30) days' written notice by Company if Company is unable to obtain or maintain through no fault of Company any license, permit or other governmental approval necessary to the construction and operation of the Company's Equipment or business; or c. By City upon providing Company with six (6) months notice that the ele- vated water tank is going to be abandoned or relocated. d. In any of the events of default or termination of this lease, the Company must leave the Property in its original condition, normal wear and tear ex- cepted. e. By Company upon providing City with six (6) months' written notice the use of the property is unacceptable for technical reasons including prop- erty being unacceptable as part of Company's network design, the tech- nology employed by the Company on the Property becoming obsolete or no longer economically viable for continued operation by Company. 12. Liability Insurance. During the Initial Term and the Renewal Terms, Company shall maintain, at its own respective expense, insurance covering claims for pub- lic liability, personal injury, death and property damage under a policy of gen- eral liability insurance, with limits of not less than Five Hundred Thousand Dol- lars ($500,000.00) per person and One Million Dollars ($1,000,000.00) per occur- rence, and property damage insurance of not less than Fifty Thousand Dollars ($50,000.00). Such insurance shall insure against liabilities arising out of or in connection with Company's use or occupancy of the Property, subject to the standard exceptions found in the Commercial General Liability Insurance Policy, and shall name the City of Elgin as an additional insured. 13. Environmental Compliance. City warrants and represents to the best of City's ac- tual knowledge and belief that the Property and the improvements thereon are free of contaminants, oils, asbestos, radon, PCBs, hazardous substances or wastes as defined by federal, state or local environmental laws, regulations or adminis- trative orders or other materials the removal of which is required or the mainte- nance of which is prohibited, regulated or penalized by any federal, state or local government authority ("Hazardous Materials"). This lease shall at the option of Company be void and of no further force or effect if Hazardous Materials are discovered to exist on the Property after Company takes possession of the Prop- erty, and Hazardous Materials are not the result of Company's operation, and 6 Company shall be entitled to a refund of all consideration given City under this Lease. 14. Interference. Company covenants that the Equipment will not cause interference with the operation of any other wireless communications equipment located on the elevated tank as of the date of this lease and that any new or replacement Equipment installed after the date of this lease will not cause interference with the operation of any other wireless communications equipment located on the elevated tank. In the event the Equipment is determined to be causing interfer- ence with the operation of any other wireless communications equipment located on the elevated tank as of the date of this lease, Company shall eliminate or rec- tify such interference within seventy-two (72) hours of the receipt of notice of such interference from City. If such interference cannot be eliminated or rectified to City's personal satisfaction within seventy-two (72) hours of the receipt of no- tice by Company from City of the existence of interference ("Notice Date"), Company shall disconnect utility service to the Equipment until such time as the interference can be eliminated or rectified to the City's satisfaction. If said inter- ference cannot be eliminated or rectified to City's satisfaction within thirty (30) days of the Notice Date, Company shall immediately remove the Equipment from the elevated water tank and the Property or City may at the sole discretion and option of terminate this lease upon notice to Company. City shall prohibit the operation of any telecommunications equipment on the Property during the Term which will cause interference with Company's radio reception and broad- cast activities or limit Company's intended use of the Property. Upon any notice from Company to City of the existence of interference with Company's radio re- ception and broadcast activities on the Property which the Company believes is attributable to other telecommunications equipment in use on the Property not in existence at the beginning of the Term or used in a manner in which it was not used at the beginning of the Term, City will use its best efforts to cause such in- terference to cease not more than seventy-two hours after notice from Company. 15. Indemnification. To the fullest extent permitted by law, Company agrees to and shall indemnify, defend and hold harmless City, its officials, officers, employees, attorneys, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorney's fees, damages or other relief, including but not limited to workers' compensation claims, in any way resulting from or arising out of or alleged to be resulting from or arising out of negligent actions or omis- sions of Company in connection with the performance of this agreement, includ- ing negligence or omissions of Company's employees, agents or subcontractors arising out of the performance of this agreement, or in any way resulting from or arising out of or alleged to be resulting from or arising out of any violation and/or breach of the terms or provisions of this agreement by Company, includ- ing any violation and/or breach by employees, agents or subcontractors of Com- 7 pany. In the event of any action against City, its officials, officers, employees, at- torneys, agents, boards and commissions covered by the foregoing duty to in- demnify, defend and hold harmless, such action shall be defended by legal coun- sel of City's choosing. The provisions of this paragraph shall survive any expira- tion and/or termination of this agreement. 16. Limitation of Liability. Notwithstanding anything to the contrary in this agree- ment, in no event shall City, its officials, officers, employees, attorneys, agents, boards and commissions be liable to Company under any contract, negligence, strict liability or other legal or equitable theory for any indirect, special, conse- quential or incidental damages whatsoever, including but not limited to damages for loss of business profits, business interruption and loss of business informa- tion, arising from this agreement and/or Company's use of the Property. City's liability arising from Company's use of Property shall be limited to direct dam- ages of not more than the consideration paid to City by Company in accordance with paragraph 6 of this agreement, if any. Company acknowledges and agrees that the foregoing amount is not an estimate of damages and that such amount shall not be admissible for any purpose in any action against City. The provisions of this paragraph shall survive any expiration and/or termination of this agree- ment. 17. Subrogation. a. In General. All insurance policies required under this Lease shall, if possi- ble, contain a waiver of subrogation provision under the terms of which the insurance carrier waives all of its rights to proceed against City or Company, as the case may be. If waivers of subrogation are obtained, the party procuring such insurance shall use its best efforts to obtain a certifi- cate of insurance that notes the waiver of subrogation and a copy of the insurance policy endorsement that evidenced the insurance carrier's as- sent to the waiver of subrogation. b. Mutual Release. City and Company each release the other and their respec- tive representative from any claims by them or any one claiming through or under them by way of subrogation or otherwise for damage to any per- son or to the Property and to the fixtures, personal property, improve- ments and alterations in or on the Property that are caused by or result from risks insured against under any insurance policy carried by them and required by this Lease; provided that such releases shall be effective only if and to the extent that the same do not diminish or adversely affect the coverage under such insurance policies. City shall be named as addi- tional insured on any insurance policy procured by Company. 8 18. Notices. All notices or demands by or from City to Company, or Company to City, shall be in writing. Such notices or demands shall be mailed to the other party at the following address: City: Company: City of Elgin Fox Valley Internet, Inc. Attn: Water Director 164 E. Chicago Street 150 Dexter Court Suite 1 Elgin, IL 60120-5555 Elgin, IL 60120 19. Destruction of Premises: If the Property or the elevated water tank are destroyed or damaged so as to hinder the effective use of the elevated water tank in Com- pany's judgment, Company may elect to terminate this lease as of the date of the damage or destruction by so notifying the City. In such event, all rights and obli- gations of Company to City shall cease as of the date of the damage or destruc- tion, and Company shall be entitled to the reimbursement of any rent prepaid by Company. 20. Title and Quiet Enjoyment. City warrants that (i) it has the full right, power and authority to execute this lease; (ii) it has good and marketable title to the Prop- erty free and clear of any liens, encumbrances or mortgages. City further war- rants that Company shall have the quiet enjoyment of the Property during the term of this lease. 21. Assignment. Any sublease or assignment of this lease that is entered into by City or Company shall be subject to the provisions of this lease. Company may assign this lease with the consent of City to an affiliate of Company or to an entity that acquires Company's assets or stock and continues in the business of offering wireless telecommunication services. Company may not otherwise sublet or as- sign this lease without the City's consent. 22. Successors and Assigns. This lease shall run with the Property and shall be binding upon and inure to the benefit of the parties, their respective heirs, successors, personal representatives and assigns. 23. Miscellaneous. a. This lease constitutes the entire agreement and understanding of City and Company with respect to the subject matter hereof and supersedes all of- fers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and executed by City and Company. 9 b. If either City or Company is represented by a real estate broker in this transaction, that party shall be fully responsible for any fees due such bro- ker and shall hold the other party harmless from any claims for commis- sion by such broker. c. This lease shall be construed in accordance with the laws of the State of Il- linois and venue for any legal action involving this lease shall be in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. d. If any term of this lease is found to be void or invalid, such validity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. e. City shall cooperate with Company's efforts to evaluate the elevated wa- ter tank and to comply with governmental regulations affecting Com- pany's use of the Property by providing information about the elevated water tank, the elevated water tank's location and prior filings made by City with governmental agencies. f. This lease may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties, it being understood that all parties need not sign the same counterpart. IN WITNESS WHEREOF, City and Company have executed this Non-Exclusive Tower Attachment Lease Agreement as of that date and year first above written. CITY OF ELGIN FOX VALLEY INTERNET, INC. City Manager President Attest: City Clerk F:\Legal Dept\Agreement\Lease-Fox Valley Internet-Water Tower-College Green.doc 10 LEGAL DESCRIPTION THAT PART OF LOT 3 OF WESTFIELD BUSINESS PARK, BEING A SUBDIVISION OF PART OF THE NORTHEAST QUARTER OF SECTION 31 , TOWNSHIP 42 NORTH) RANGE 0 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 51 THENCE NORTH 01 DEGREE 46. 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