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HomeMy WebLinkAboutVertical Realestate, Inc.LEASE AGREEMENT Section 1: Parties I .I Landlord's Contact Person John Duffy, Director of Utilities City of Carmel Utilities One Civic Square Carmel, Indiana 46032 (317) 571-2400 E-maih jduffy@ci.carmel.in.us 1.2 Landlord's Name and Address City of Carmel One Civic Square Carmel, Indiana 46032 Attn: Office of the Clerk-Treasurer With a copy of any legal notice to: Carmel City Attorney's Office One Civic Square Carmel, IN 46032 1.3 Tenant's Contact Person Name: Jack Buck, President Address: 2602 Cass Street, P. O. Box 8096 Fort Wayne, Indiana 46898-8096 Telephone Number: (219) 482-5454 1.4 Tenant's Name and Address Name: Vertical RealEstate, Inc. Address: 2602 Cass Street, P. O. 8096 Fort Wayne. Indiana 46898-8096 Attn: Jack Buck, President Telephone Number: (219) 482-5454 Section 2: Description Lease Property This Lease shall consist of a ground lease of approximately three-thousand (3000) square feet of real property to be more particularly described in Exhibit B and incorporated by reference (the "Leased Property"). The Leased Property is located on a portion of City land located at 931 North Rangeline Rd, Carmel, Indiana 46033 legally described in Exhibit A. This Lease shall include the right of reasonable ingress and egress and for access for utility services to and from the Leased Property over the Land described in Exhibit B (the "Easements"). The exact location and dimensions of the Leased Property and Easements shall be set forth in the Survey obtained by Tenant pursuant to Section 7 of this Lease, and Exhibit B shall at the time the Survey is obtained be modified to conform and be consistent with the Survey. The purpose of this lease is for the construction of telecommunications facilities which shall include the construction of one antennae support structure not to exceed one-hundred and sixty (160) feet in height and of "monopole" design (the "Tower'). 137315.2 OCT.-~8' 98(~ED) 10:27 BARRETT&MCNAGNY TEL:2194258924 -P. 005 3: Term and Options to Extend 3,1 Commencement Date The Term of this Lease Agreement shall commence on the date Landlord delivers possession of the Leased Property to Tenant, which is anticipated to occur on or about January 1, 1999, but in no event will the Term commence prior to the completion, satisfaction, or waiver of certain Conditions Precedent described in Section 7 of this Lease (the "Commencement Date'). The Commencement Date of this Lease shall be the date that Tenant gNes written notice to the Landlord that all the Conditions Precedent have been completed, satisfied, or waived ('Notice of Commencement'). 3.2 Initial Term end Rent Landlord leases the Leased Property to Tenant and Tenant accepts and leases the Leased ProDerty from Landlord for the Initial Term of five (5) years and on the terms and conditions of this Lease beginning on the Commencement Date at the Initial Rent of Ten Thousand and No/100 Dollars ($10,000.00) base rent annually plus Additional Rent (as defined in Section 3.5), payable annually in advance, and as adjusted in succeeding years pursuant to Section 3.4. 3.3 Option to Extend So long as Tenant is not in default and has continuously used the Leased Property for the use permitted heroin during the twelve (12) month period preceding expiration of the Lease Term or option period then in effect, and subject to Section 17 of this Lease, the term of this Lease shall be automaticaUy renewable for five (5) additional terms of five (5) years each following the original term ('Option Period(s)") at the annual rental stated below and otherwise upon the same terms and conditions stated in this Lease. If Tenant desires to not extend the term of the Lease, for any Option Period, it shall 9ire Landlord written notice of its intention to not extend the term at least sixty (60) days pdor to the expiration of the then current term whereupon the Lease shall be deemed canceled upon the expiration of the then current term. 3.4 Rent nurino Extension Terms The annual rental fort he fiat (let)five (5) year extension term shall be increased to Eleven Thousand Five Hundred and Noil00 Dollars ($11,500.00) base rent p[us Additional Rent (as defined in Section 3.5); (payable annually in advance); for the sacrind (2nd) five (5) year extension term the annual rental shall be increased to Thirteen Thousand Two Hundred Twenty-Five and No/100 Dollars ($13.225.00) base rent plus Additional Rent (as defined in Section 3.5); (payable annually in advance); for the thin (3rd) five (5) year extension term the annual rental shall be increased to Fifteen Thousand Two Hundred Eight and 75/100 Dollars ($15,208.75) base rent plus Additional Rent (as defined in Section 3.5); (payable annually in advance); for the fourth (4th) five (5) year extension term the annual rental shall be increased to Seventeen Thousand Four Hundred Ninety and 061100 Dollars ($17,490.06) base rent plus Additional Rent (as defined by Section 3.5); (payable annually in advance); and for the fifth (5th) five (5) year extension term the annual rental shall be increased to Twenty Thousand One Hundred Thirteen and 57/100 Dollars ($20,113.57) base rent plus Additional Rent (as defined in Section 3.5); (payable annually in advance}. 3.5 Additional Rent. For purposes of Section 3.2 and Section 3.4,"Additional Rent" means as follows: (a) Tenant intends to construct a Tower on the Leased Premises and to lease space on the Tower to third party communication companies ('"Subtenants"). (b) The gross rentals and all forms of income actually received by Tenant (and its successors) from Subtenants may be referred to as the "Gross Rentals." (C) A "Lease Year' means the twelve (12) month period of time beginning on the Commencement Date (and the subsequent anniversary dates thereof) of each year and ending twelve (12) months thereafter. (d) "Additional Rent" means 10% of the Gross Rentals received by Tenant in a Lease Year in excess of the base rent amount paid by Tenant for the same Lease Year. (e) Within twenty (20) days after the end of any Lease Year, Tenant shall certify in writing to Landlord the Gross Rentals for such Lease Year from each Subtenant and shall simultaneously deliver the Additional Rent payable, if any. Within twenty (20) days after receipt of Tenant's written certification, Landlord may, at Landlord's sole cost and expense, have an audit of Tenant's records relating to Gross Rentals for such Lease Year made by a certified public accountant acceptable to Tenant to verify the amount of such Gross Rentals. The Additional Rent payable shall be adjusted according to the Gross Rentals determined by such audit. Notwithstanding the foregoing, if the Gross Rentals certified by Tenant are less than the Gross Rentals determined by such audit by more than 5%, Lessee shall also reimburse Landlord for the cost of such audit. Section 4: Communications Facilities All communications facilities installed pursuant to this Lease shall be installed in locations designated by Landlord and affixed in a manner approved by Landlord. Landlord shall not unreasonably withhold approval of the construction of the Tower and support facilities if the construction and appearance will be substantially consistent with the descriptions/depictions attached hereto as Exhibits C. Tenant shall be solely responsible for securing and maintaining the Tower and any and all antennae, cable and other equipment attached thereto or located on the Leased Premises in a safe and secure manner. Landlord shall assume no responsibility for the safety or security of the property of the Tenant upon this location. Section 5: Methods of Payment 5.1 First Rent Payment Prior to entry onto the Premises, but not later than ten (10) calendar days after the Commencement Date of this Lease, Tenant shall pay Landlord rent for the first year of the Initial Term. 5.2 Methods of Payment Subsequent to the first rent payment, rent shall be payable annually in advance on or before each anniversary of the Commencement Date, without setoff or deduction, and without relief from valuation or appraisement laws. In addition to the payment of Rent as provided in the Lease, Tenant shall pay to Landlord, as additional rent, all other sums of money and charges required to be paid by Tenant to Landlord under the Lease. If Tenant fails to pay within ten (10) calendar days after the same is due and 137315.2 payable any installment of Rent or any other sum or charge required to be paid by Tenant to Landlord under the Lease, such unpaid amount shall bear interest from the due date thereof to the date of payment at the rate of eighteen percent (18%) per annum or the highest rate permissible under applicable law, whichever is less, until paid. 5.3 Location for Payment All rent shall be paid to Landlord at the address stated in Section 1.2 or to another person, firm or place which the Landlord may from time to time designate in writing. Section 6: Use of Leased Property Tenant shall use the Leased Property solely for the installation and operation of one antennae support structure ("Tower') and not more than seven (7) antenna arrays substantially similar in appearance to those depicted in Exhibit C and related cabling, for lawful telecommunications purposes and related site preparation, improvements and maintenance purposes in accordance with local rules and governmental regulations and this Lease, and for no other purpose. Tenant shall maintain the Leased Property in good, safe and clean condition and shall use the Leased Property in accordance with all applicable laws, codes, ordinances, rules and regulations. Tenant shall not install or maintain any advertising signage or decoration on or about the Leased Property. A small sign containing information which merely identifies the name address and telephone number of the Tenant shall be allowed with the prior approval of Landlord. Tenant shall not cause nor allow any waste to or nuisance on the Leased Property. Tenant shall not suffer or give cause for the filing of any mortgage lien, mechanic's lien or other lien or security interest ("Lien") against the Leased Property. If any Lien is filed for work or material claimed to have been furnished to the Tenant on account of the act or omission of Tenant or its agents, employees or contractors, Tenant shall cause such Lien to be discharged of record within sixty (60) days receiving notice of the filing or, alternatively, Tenant shall furnish to Landlord (or any other entity designated by Landlord) within such sixty (60) day period a bond or other assurances reasonably acceptable to Landlord that such claimed indebtedness as finally determined will be paid by Tenant. Tenant shall indemnify and save harmless Landlord from all costs, losses, expenses and attorney fees in connection with any such Lien which indemnification shall survive the termination of this Lease. Section 7: Conditions Precedent to Tenant's Obligations Tenant's obligations under this Lease are subject to the completion and satisfaction, at the Tenants sole cost and at no cost to the Landlord, of the following conditions precedent ("Conditions Precedent"): 7.1 The receipt by Tenant of a leasehold title insurance policy insuring Tenant's leasehold interest in the Leased Property. Tenant's obligations under this Lease are conditioned upon Tenant's satisfaction with the status of the title to the Leased Property and the approval by Tenant of the title insurance policy which insures in Tenant its leasehold interest free and clear of any liens, encumbrances, or exceptions other than those which do not interfere with use of the Leased Property as a telecommunications facility. 7.2 The receipt by Tenant of a land survey of the Lease Property ("Survey"). Tenanrs obligations hereunder are subject to Tenant's approval of the Survey. 7.3 If as a result of the leasehold title insurance policy it is disclosed there is a mortgage on the Leased Property, then the mortgagee must execute a non-disturbance agreement in a form acceptable to 137315.2 Tenant which assures Tenant of its right to possess the Leased Property in even of default on the mortgage. 7.4 Tenant's satisfaction of the condition of the Leased Property, including without limitation, the environmental condition of the Leased Property, the suitability of installing the Tower on the Leased Property, and the availability and adequacy of utility service to the Leased Property. 7.5 The determination by the Tenant that the Leased Property is properly zoned to allow Tenant to operate its telecommunications facility, including but not limited to the construction of the Tower on the Leased Property. 7.6 The receipt by Tenant of all necessary permits, approvals, consents, and licenses form any applicable governmental authorities or agencies to allow the Tenant to build and operate a Tower on the Leased Property. Landlord shall reasonably cooperate with and assist Tenant in causing the Conditions Precedent to be completed and satisfied, and including without limitation, Landlord shall execute such documents and otherwise cooperate with and assist Tenant in obtaining the title insurance, the Survey, soil tests, environmental tests, and any necessary permits, approvals, consents and licenses from applicable governmental authorities or agencies (including proper zoning classification). Regardless of when this Lease is actually executed by the parties, Tenant shall have one hundred twenty (120) days from the date official action is taken by the City (through its Board of Public Works and Safety) to award the Lease to complete the Conditions Precedent. (Note, the award of the Lease will occur prior to the actual execution of the Lease.) If the Tenant fails to complete the Conditions President within the one hundred twenty (120) day period, then this Lease shall be null and void, unless the period is extended by the parties in writing. Section 8: Tenant's Installation 8.1 Improvements Prior to the Commencement Date Tenant shall provide Landlord with detailed plans and specifications for the construction of a Tower, and the placement of antennas, equipment enclosures, fencing, equipment, other personal property, fixtures, cables, transmission lines, and utilities on the Leased Property for approval by Landlord, which approval shall not be unreasonably withheld. After approval and no later than the Commencement Date, Tenant shall begin promptly to construct and install to completion the approved improvements, cables and antennae substantially in accordance with the approved plans and specifications, in a good and workmanlike manner and in compliance with this Lease and applicable codes, laws and regulations. 8.2 Electric Service Tenant shall be solely responsible for and pay when due all charges for provision of electricity, telephone or other utility services required for Tenant's use of the Leased Property. Landlord shall cooperate with Tenant's efforts to obtain utility service by signing such documents as may be reasonably required by utility companies for access to the Leased Property. Landlord makes no representation or warranty regarding the availability or adequacy of utility service to the Leased Property. Landlord shall under no circumstances be liable to Tenant for damages or otherwise for any interruption in electrical or other utility services for any cause beyond Landlord's reasonable control. 8.3 Workmanlike Construction 137315.2 Tenant agrees that all installations will be completed in a neat, workmanlike manner consistent with good engineering practices. All costs of the installation will be paid by the Tenant. 8.4 Title to Various Items Landlord or its successor or transferee, shall, at all times, be the sole and exclusive owner of the Leased Property. Tenant shall, during the term of this lease, be the sole and exclusive owner of the Tower, and Tenant and Tenant's sublessees shall at all times be the sole and exclusive owners of their respective antennas, equipment enclosures, equipment, other personal property, fixtures, transmission lines and cables and other improvements installed by Tenant on the Leased Property. Subject to Section 19 of this Lease, all permanently affixed improvements and fixtures (excluding trade fixtures), including but not limited to the Tower, shall remain and become the property of Landlord upon the expiration or earlier termination of the Lease. 8.5 Ingress and Egress 10.1 Tenant and its authorized representatives and sublessees shall have the right of ingress and egress to and from the Leased Property twenty-four (24) hours a day, seven (7) days a week, subject, however, to the reasonable rules, regulations and security measures that may be promulgated from time to time by Landlord. During the Term or any Option Period of this Lease, Landlord may relocate the Easements, but only with the written consent of the Tenant, which consent shall not be unreasonably withheld. Landlord shall provide Tenant with written notice and request for consent no less than thirty (30) days prior to the proposed relocation. The relocation shall be accomplished by Landlord in such a way as to minimize any disruption to Tenant's telecommunications facilities. The relocated Easement shall be the same width and shall be improved to the same extent as the Easements being replaced. All costs and expenses of any such relocation and improvements, including the costs of relocating utility service lines to the Leased Property shall be paid by Landlord. Section 9: Taxes Tenant shall be solely responsible for and shall timely pay all personal property taxes levied and assessed against it or its personal properly and any improvements made by Tenant. Tenant shall pay such taxes promptly after receipt of a copy of the tax bill. At the request of Landlord, Tenant shall provide evidence of payment of such taxes. Tenant shall have the right to contest all taxes, assessments, charges, and impositions, and Landlord agrees to join in such contest, if required by law, provided that the expense of the contest is borne by Tenant. Section 10: Indemnification By Tenant Tenant hereby agrees to indemnify, defend and hold Landlord harmless from and against any claim of liability or loss resulting from or arising out of the use and occupancy of the Leased Property by Tenant or its agents, employees, contractor, licensees or invitees, excepting, however, such claims or damages as may be due to or caused by the acts of the Landlord or its agents. Such indemnification obligations shall survive the termination of this Lease. Tenant shall maintain in full force and effect throughout the Lease Term and any Option Periods policies of comprehensive general public liability and property damage insurance, issued by a company or companies and in form satisfactory to Landlord, naming Landlord and Tenant as insureds, and covering any and all claims for injuries to or death of persons and damage to property occurring in or upon the Leased Property in amounts not less than One Million Dollars ($1,000,000.00) for injury to or death of 137315.2 10.2 11.1 11.2 11.3 any one person; One Million Dollars ($1,000,000.00) for injury to or death of more than one person in the same accident or occurrence; and Two Hundred Fifty Thousand Dollars ($250,000.00) for damage to property arising out of any one accident or occurrence. If it becomes prudent to carry higher limits of liability coverage, Tenant shall, if requested by Landlord, increase the foregoing coverage to commercially reasonable limits. Tenant shall also maintain in full force and effect throughout the Lease Term and any Option Periods fire and extended coverage, vandalism, malicious mischief, and special extended coverage insurance on its fixtures, equipment, antennae, cables and other personal property and improvements in or upon the Leased Property. All property of Tenant kept or stored in, upon or about the Leased Property shall be so kept or stored at the sole risk of Tenant; and, except as provided in Section 10.2, Tenant shall hold Landlord harmless from any claims, costs or expenses, including attorney fees, arising out of damage thereto. By Landlord Landlord hereby agrees to indemnify, defend and hold Tenant harmless from and against any claim of liability or loss from personal injury or property damage resulting from the negligence or willful misconduct of Landlord or its agents, employees, contractors, licensees, or invitees in connection with the Leased Property. Section 11: 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, as follows: Authority Landlord is solvent and to the best of Landlord's knowledge, the owner of the Leased 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 Leased Property. Landlord hereby agrees to defend its title against claims of third parties and hold tenant harmless from costs arising from defects in Landlord's title. The persons executing this Lease on behalf of Landlord have the authority to sign the Lease on behalf of Landlord. This Lease is a legal, valid and binding obligation of Landlord and is enforceable against Landlord in accordance with its terms. No Condemnation Landlord has received no actual or constructive notice of any condemnation or eminent domain proceedings or negotiations for the purchase of the Leased Property, or any part, instead of condemnation. No Unrecorded Liens Landlord has not performed and has not caused to be performed any work for which payment has not been made on the Leased Property during the six months preceding the date of this Lease which could give rise to any mechanic's or materialmen's liens. To the best of Landlord's knowledge, there are no unrecorded easements or agreements affecting the Leased Property. Section 12: Assignment 137315.2 13.1 The Tenant shall not assign or transfer this Lease without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, except that Tenant may, without Landlord's consent, assign this Lease to Tenant's parent or subsidiary or any business entity or partnership affiliated with it or Tenant by common ownership. Section 13: Defaults By Tenant Each of the following shall be deemed a default by Tenant: (a) (b) (C) Tenant's failure to pay rent as provided in the Lease when due; Tenant's failure to perform or observe any other term, condition or covenant of the Lease to be performed or observed by Tenant; The sale of Tenant's leasehold interest hereunder pursuant to execution; the adjudication of Tenant as a bankrupt; the making by Tenant of a general assignment for the benefit of creditors; the appointment of a receiver in equity for Tenant's property if such appointment is not vacated or otherwise terminated within forty-five (45) days from the date of such appointment; the appointment of a trustee, custodian or receiver for Tenant's property in a reorganization, or other bankruptcy proceeding if such appointment is not vacated or set aside within forty-five (45) days from the date of such appointment; Tenant's filing of a voluntary petition in bankruptcy or for reorganization or arrangement; or Tenant's filing of an answer admitting bankruptcy or agreeing to reorganization or arrangement. In the event of any business default provided in Clause (a) above and the continuance of such a default for fifteen (15) days after receipt of written notice; or in the event of any default provided in Clause (b) above and continuance of such a default without commencement by Tenant of action reasonably necessary to cure this default after thirty (30) days written notice (or such additional time as is reasonably required to correct any such default) from Landlord to Tenant; or in the event of any other default provided above without any demand or notice, Landlord, in addition to any other rights or remedies at law or in equity, may: (a) (b) (C) elect to terminate the Lease; perform the covenant or covenants of Tenant which are in default (entering upon the Leased Property for such purpose, if necessary); and Landlord's performance of any such covenant shall neither subject Landlord to liability for any loss, inconvenience or damage to Tenant nor be construed as a waiver of Tenant's default or of any other right or remedy of Landlord in respect of such default, or as a waiver of any covenant, term or condition of the Lease; or immediately re-enter upon the Leased Property, remove all persons and property therefrom, and store such property in a public warehouse or elsewhere at the sole cost and for the account of Tenant, all as may be permitted by law, without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby, and without such re-entry being deemed to terminate the Lease. If Landlord re-enters upon the Leased Property as provided in Clause (c) above, or takes possession of the Leased Property pursuant to legal proceedings or pursuant to any notice provided for by law, Landlord may either terminate the Lease, or from time to time without termination of this Lease, make alterations and repairs for purpose of re-letting the Leased Property and re-let the Leased Property or 137315.2 13.2 any part thereof for such term or terms at such rental and upon such other terms and conditions as Landlord in its sole discretion deems advisable. Upon each re-letting, all rental received from such re- letting shall be applied: first to payment of costs of such alterations and repairs; second, to the payment of rent and any other indebtedness due and unpaid hereunder; and the remainder, if any, shall be held by Landlord and applied in payment of future rent as it becomes due and payable hereunder. If the rentals received from such re-letting during any month are less than amounts to be paid hereunder by Tenant during that month, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No re-entry or taking of possession by Landlord of the Leased Property shall be construed as an election to terminate this Lease unless a written notice of termination is given to Tenant. Notwithstanding any re-letting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant's previous default. Notwithstanding any election by Landlord of any right or remedy set forth herein, and in addition to any other remedies Landlord may have, Landlord shall be entitled to recover from Tenant all damages Landlord may incur by reason of such default, including, without limitation, all loss or damage sustained in connection with such default, costs of performing any covenant or covenants of Tenant, costs of recovering possession of, altering, repairing and re-letting the Leased Property, reasonable attorney fees and collection costs, and any other loss, cost, damage or expense incurred by Landlord. By Landlord Landlord shall in no event be charged with default in the performance of any of its obligations under this Lease unless and until Landlord shall have received written notice from Tenant specifying wherein Landlord has failed to perform such obligation or remedy such default, and such default has not been cured after thirty (30) days (or such additional time as is reasonably required to correct any such default) from Landlord's receipt of such notice from Tenant. Section 14: Condemnation If any of the Leased Property is taken in a condemnation proceeding, or sold in lieu of condemnation, then at Landlord's or Tenant's option (exercised by notice to the other party) this Lease may be terminated and Tenant shall be liable for rental and other payments only until the date on which the Leased Property is vacated. Tenant shall not receive any part or portion of condemnation award or sales proceeds relating to compensation for property owned by the Landlord or any interest in the Lease. Section 15: Casualty If the Leased Property is destroyed or damaged in whole or in part by casualty during the term of this Lease then, at Landlord's or Tenant's option (exercised by notice to the other party), this Lease may be terminated as of the date of the event or at any time within ninety (90) days thereafter, prepaid rent, if any, returned to Tenant and no further rent shall be due under the Termination Section or any other Section of this Lease. Section 16: Quiet Enjoyment Landlord covenants and agrees that upon full and timely payment by the Tenant of the rental under this Lease and upon the full and timely observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Leased Property, the rights and privileges granted for the term demised without hindrance or interference by Landlord. 137315.2 OCT. 228' 98(WED) 10:27 BARRETT&blGNAGNY TEL:2194238924 -P. 004 Section 17: Termination 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 at any time upon thirty (30) days' written notice to Landlord. Section 18: Termination by Landlord If Tenant ceases to use the Leased Property for a period of six (6) months or more, then, upon ninety (90) days prior written notice to Tenant. Landlord shall have the right to terminate this Lease. Section 19: Removal of Equipment Upon the expiration of this Lease, or its eadier termination or cancellation for any reason, Tenant shall at its sole expense remove from the Leased Property aft of its antennas. equipment enclosures. transmitting and receiving equipment. transmitting lines, offer personal property, and trade fixtures. Tenant shall leave all fencing unless. prior to the effective date of the expiration, termination or cancellation, Landlord requests removal. Tenant shall have up to thirty (30) days after the effective date of the expiration, termination or cancellation to complete removal of all items dudng which period Tenant shall pay to Landlord 100% of one-twelfth (1112) of the annual rent in advance for such thirty (30) day period or portion thereof. If Tenant requires any pedod after thirty (30) days after the effective date for such removal or otherwise remains in possession of the Leased Property beyond thirty (30) days after the expiration or earlier termination of the Lease, Tenant shaft pay to Landlord 150% of the then current monthly rent (in the case of annual rental 150% of one-twelfth (1112) of the annual rental) in advance for each thirty (30) day pedod or I~odion thereof Tenant .recluires to complete the removal or otherwise remains in possession of the Leased Property beyond the expiration or earlier termination of the Lease. Tenant shall repair any and all damage caused by removal of Tenant's property, normal wear and tear excepted. Any property of Tenant remaining on the Leased Property after thirty (30) days after the expiration of the Lease Term or other termination of the Lease shall be deemed abandoned and Landlord shall be entitled to retain the same for its use or to remove and dispose of such property at Tenant's sole cost and expense. The obligations of Tenant hereunder shall expressly survive the expiration or earlier termination of the Lease. Section 20: Lease Conetruction This Lease shall be construed in accordance with the laws of the State of Indiana. In the event that any provisions of this Lease are legally unenforceat~le, the other provisions shall remain in effect. SecUon 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 a written agreement signed by the parties. Presentation of this Lease by Tenant to Landlord 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 Section 22: Successors; Separabllity 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 and/or subtenants of the parties and any ~373~5.2 10 grantee of Landlord. This Lease and the Leased Property may be freely assigned by Landlord, without the consent of Tenant. Section 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) actual receipt 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). Section 24: Lease Memorandum Simultaneous with the execution of this Lease, the parties shall execute a Memorandum of Lease, (Exhibit D). Provided Tenant has caused a legal description to be prepared containing only the Leased Property and Easements and not any of Landlord's land which is not encumbered by this Lease, Tenant may record the Memorandum of Lease. If Tenant's Survey requires a correction to the legal description rider attached to the Memorandum of Lease, the parties will execute and record or re-record a modified Memorandum of Lease or a supplement to the Memorandum of Lease. At Tenant's request, Landlord shall execute a title affidavit and such other documents reasonably requested by Tenant as may be necessary to protect Tenant's leasehold interest. Section 25: Performance Time is of the essence in this Lease. Section 26: Broadcast Interference 26.1 Definition As used in this Lease, "interference" with a broadcasting activity means: (a) (b) Interference within the meaning of the provisions of the recommended practices of the Electronics Industries Association (EIA) and the rules and regulations of the Federal Communications Commission (FCC) then in effect, or 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 Leased Property or had any equipment on the Leased Property. 26.2 Removal Tenant shall take reasonable actions to prevent and properly remove any interference with broadcast activities of Landlord caused by Tenant's use of the Leased Property. Landlord shall take reasonable actions to prevent and promptly remove or cause to be removed any interference with Tenant's broadcast activities caused by Landlord's use of the Leased Property. 26.3 Collocation 137315.2 Tenant covenants and agrees to use its good faith best efforts to cooperate with Landlord and/or any other service providers wishing to sublease space on the Tower for the installation of additional telecommunications equipment upon the Leased Property. 27.1 27.2 27.3 27.4 Section 27: Environmental Matters Definition For purposes of this Lease: (a) "Applicable Environmental Laws" includes the Comprehensive Environmental Response, Compensation, and Liability Act, any so called "Superfund" or "Superlien" law, the Resource Conservation and Recovery Act, or any other Federal, state or local statute, law, ordinance, code, rule or regulation, regulating 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 (including without limitation, laws and regulations dealing with underground storage tanks). (b) "Hazardous Material" includes any hazardous, toxic or dangerous waste, substance or material as that term is defined in Applicable Environmental Laws. No Hazardous Material Landlord represents and warrants that with respect to environmental matters, (i) there are no Hazardous Materials of any kind on, in or under the Leased Property, (ii) there are no proceedings pending or threatened where allegations have been made that there are violations of the Applicable Environmental Laws with respect to the Leased Property, and (iii) Landlord has not received any notice from any governmental authority or any person or entity claiming that there have been any violations of the Applicable Environmental Laws with respect to environmental contamination of the Leased Property. Tenant's Indemnity Tenant indemnifies the Landlord and agrees to hold the Landlord harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever paid, incurred or suffered by or asserted against Landlord for, with respect to, or as a direct or indirect result of, the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, or release from the Leased Property or into or upon any land, the atmosphere or any watercourse, body of water or wetland, of any Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under Applicable Environmental Laws) caused by or in the control of Tenant, or its agents, employees or contractors or Tenant's sublessees. Tenant's Non-Responsibility Notwithstanding the foregoing, Tenant shall not be required to indemnify or hold harmless Landlord from or against any liability for any Hazardous Material existing on the Leased Property prior to the Commencement Date or thereafter caused solely and directly by Landlord or its agents, employees or contractors or caused by any person or entity not in the control of Tenant, or its agents, employees, or contractors, or Tenant's sublessees. 137315.2 12 27.5 Survival The provisions of and undertakings and indemnification set forth in this Lease shall survive the termination of this Lease. Section 28: Landlord's Access to Leased Property Upon reasonable advance notice, Landlord shall be entitled and Tenant shall permit Landlord and its agents, employees, licensees and invitees to enter upon the Leased Property at all reasonable times to inspect and examine the Leased Property. If Tenant is not present to open and permit an entry by Landlord into the Leased Property at any time when entry therein is necessary because of an emergency, Landlord or its agents may forcibly enter the Leased Property without rendering Landlord or its agents liable therefor and without in any manner affecting the obligations and covenants under the Lease, provided that Landlord shall repair any damage to the Leased Property caused by such forced entry. Landlord's foregoing right of entry shall not be construed to impose upon Landlord any obligation or liability whatsoever for the maintenance or repair of the Leased Property except as expressly provided in the Lease. If advance notice is not possible prior to entry because of an emergency, Landlord shall notify Tenant as soon as practicable after entry. Section 29: Accord and Satisfaction No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent; nor shall any endorsement or statement on any check or letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept any such check or payment without prejudice to Landlord's right to recover the balance of such rent or to pursue any other remedy provided in the Lease. Section 30: Waivers No waiver of any covenant or condition nor the breach of any covenant or condition of this Lease shall be deemed to constitute a waiver of any subsequent breach of such covenant or condition, nor justify or authorize a nonobservance on any occasion of such covenant or condition or any other covenant or condition, nor shall the acceptance of rent by Landlord at any time when Tenant is in default of any covenant or condition of the Lease be construed as a waiver of such default or of Landlord's right to terminate the Lease on account of such default. Section 3t: Broker Tenant hereby represents and warrants to Landlord that it will bear all costs associated with employment of any broker relating to this Lease or the Leased Property. 137315.2 13 This Agreement is agreed to and effective as of the later of the two dates below: LANDLORD TENANT CITY OF CARMEL by and through its Board of Public Works and Safety Date://"/~-- ~ VERTICAL REALESTATE, INC. BY:a~ck~uck' presiden"'~~/X~--t~ Diana L. Cordr~r 137315.2 EXHIBIT A LEGAL DESCRIPTION OF THE LEASED PROPERTY 931 NORTH RANGELINE ROAD CARMEL, INDIANA Beginning at a point where formerly stood the southwest corner of the Union Traction Company's Bridge over Cool Creek; thence South thirty-one (31) rods; thence West forty (40) rods to the former Union Traction Company's bridge on Pogue's Run (a/k/a Little Cool Creek); and thence in a northeasterly direction along the former Union Traction Company's right-of-way to the place of Beginning, being part of Section 19, Township 18 North, Range 4 East, containing five (5) acres more or less. EXHIBIT B SKETCH OF THE LEASED PROPERTY 137315.2 RANGELINE_ ROAD I I Iru I FD L__J' ,I I !I ~ L_J " I " I LJ I I I L_._.J \ x % 0 \ f' \ , z \\ \ Communications 314.727.8600 --! rTi "'0 I' )> z EXHIBIT C DEPICTION OF COMMUNICATIONS FACILITIES 137315.2 This instrument was drafted by and after recording return to: EXHIBIT D Page 1 of 2 MEMORANDUM OF LEASE AGREEMENT This Memorandum of Lease Agreement ("Memorandum") is made this 2 da of · y 1998, between City of Carmel having an address at One Civic Square, Carmel, Indiana 46032, as the; Landlord, and Vertical RealEstate, Inc., having an address of 2602 Cass Street, P. O. Box 8096, Fort Wayne, Indiana 46898-8096, as the Tenant. 1. Landlord and Tenant have entered into a Lease Agreement dated ./V~ ! ?' , 1998, for the Property in the County of Hamilton, City of Carmel and State of Indiana as legally described in Rider A and the easements as legally described in said Rider A ("Leased Property"). The common address of the Leased Property and its Property Identification Number(s) are also set forth in said Rider. 2. The Lease is for an Initial Term of five (5) years beginning ,199 , and ending ,200 Unless affirmatively canceled by Landlord or Tenant, the Initial Lease term will be extended automatically for five (5) successive terms of five (5) years each. If Tenant desires to not extend any subsequent term of the Lease it must give Landlord written notice of its intention to not 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. 3. The rights and obligations of Landlord and Tenant shall be construed solely by reference to the provisions of the Lease and in the event of any conflict between the provisions of the Lease and those of this Memorandum of Lease the provisions of the Lease shall control. IN WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum of Lease to be executed by themselves or their duly authorized officers as of the day and year written below for the purpose of providing an instrument for recording. LANDLORD TENANT CITY OF CARMEL by and through its Board of Public Works and Safety VERTICAL REALESTATE, INC. By: Jack Buck, President 137315.2 18 STATE OF INDIANA ) ) SS: COUNTY Before me, the undersigned, a Notary Public in and for said county and state, this ,,'?/~/day of ,/~r-,',;./y~-~-A., 1998, personally appeared James Brainard, Mayor; and Mary Ann Burke and Billy Walker, Members of the Board of Public Works and Safety for the City of Carmel and acknowledged the execution of the foregoing on behalf of the City of Carmel. My Commission expires: Resident of Notary Public's Signature Notary Public's Printed Name County, Indiana. STATE OF INDIANA COUNTY Of ALLEN ) ) ss: ) Before me, the undersigned, a Notary Public in and for said county and state, this day of ,1998, personally appeared Jack Buck, President of Vertical RealEstate, Inc., an Indiana corporation, and acknowledged the execution of the foregoing on behalf of said corporation. My Commission expires: Notary Public's Signature Resident of Notary Public's Printed Name County, Indiana. 137315.2 19 PRESIDENT'S CERTIFICATE AS TO ACTION OF THE BOARD OF DIRECTORS OF VERTICAL REALESTATE, INC. I, Jack Buck, President, do hereby certify that the Board of Directors of Vertical RealEstate, Inc. ("Corporation"), effective the 13th day of October, 1998, adopted the following resolution: WHEREAS, the Corporation desires to enter into a lease of certain real estate owned by the City of Carreel Municipal Water Utility and located at 931 North Rangeline Road in Carmel, Indiana (the "Real Estate") for the construction, operation and maintenance of telecommunications facilities, including' a tower and storage buildings; RESOLVED, that the Corporation does hereby authorize its President, Jack Buck, to negotiate the terms of the lease of the Real Estate (with the assistance of CIS Communications, LLC and legal counsel), to enter into such lease, and to perform such other acts as are reasonable and necessary to consummate the lease on behalf of the Corporation. WITNESS my hand this 14th day of October, 1998. 137325 LI L....._..J , C: 0 a. t[ C~S Communications ][ ] 314.7ZL8600 Vertical RealEstate, /._J \ \ \ \ RANGELIN'E ROAD LJ 0 0 C2 1 I t [[ C][S CommunicationsVert~c at I' .... RANGELINE ROAD Iru I F'] L_J L_ I k..'- \ \~ !! F't :$ C~S Communications 314. ~27. 8600 0 0 I i Vertical RealEstate, City Carme"_ December 9, 1998 Jack Buck, President Vertical RealEstate, Inc. 2602 Cass Street P.O. Box 8096 Fort Wayne, Indiana 46898-8096 Mr. Buck: On November 18, 1998, the City of Cannel Board of Public Works and Safety signed a Lease Agreement with Vertical RealEstate, Inc. for lease of property at 93 1 North Rangeline Road in Cannel. A copy of the Lease Agreement and an original of the Memorandum of Lease Agreement are enclosed. Please call City Attorney Douglas C. Haney at 317/571-2472 if you have any questions. We look forward to working with you. Sincerely, Rebecca L. Martin Deputy Clerk, Clerk-Treasurer's Office cc: file, Utils, DOL, BPW ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571-2400 ADDENDUM NO. 1 TO LEASE AGREEMENT APPROVED, AS TO FORaa By:C_,~,,,,,- THIS ADDENDUM NO. 1 TO LEASE AGREEMENT is executed by and between CITY OF CARMEL ("Landlord") and VERTICAL REALESTATE, INC. ("Tenant"), as of the date set forth below. Recitals Landlord and Tenant executed a certain Lease Agreement, effective November 18, 1998, a copy of which is attached hereto as Exhibit 1 and is hereby incorporated herein (hereinafter the "Lease Agreement"). The Lease Agreement provided that the commencement date of the Lease was based upon certain Conditions Precedent and that if the Conditions Precedent were not completed, satisfied or waived, then the Lease would be null and void. The Conditions Precedent were not completed, satisfied or waived, within the time period set forth in the Lease Agreement and the Lease Agreement, therefore, became null and void. The Landlord and Tenant now desire to enter into this Addendum No. 1 for the purpose of making the Lease Agreement effective and for extending the period for the completion, satisfaction or waiver of the Conditions Precedent, pursuant to the terms of the Lease Agreement. NOW, THEREFORE, the parties agree as follows: 1. Section 3.1 of the Lease Agreement is struck in its entirety and replaced with the following text: 3.1 Commencement Date. The Term of this Lease Agreement shall commence on the date Landlord delivers possession of the Leased Property to Tenant, which is anticipated to occur on or about June 1, 2000, but in no event will the Term commence prior to the completion, satisfaction, or waiver of certain Conditions Precedent described in Section 7 of this Lease (the "Commencement Date"). The Commencement Date of this Lease shall be the date that Tenant gives written notice to the Landlord that all the Conditions Precedent have been completed, satisfied, or waived ("Notice of Commencement"). T:\- VXVERTICAL REALESTATEXAgreeXAGR Addendum No. I (Cannel Lease).dot 2. Notwithstanding any provision to the contrary, including but not limited to any provision contained in Section 7 of the Lease Agreement, Tenant shall have one hundred twenty (120) days from the date that the Landlord executes this Addendum No. 1 to Lease Agreement to complete the Conditions Precedent. If the Tenant fails to complete the Conditions Precedent within said one hundred twenty (120) day period, then this Lease shall be null and void, unless the period is extended by the parties in writing. 3. The Lease Agreement shall remain in full force and effect, except as modified by this Addendum No. 1 to Lease Agreement. IN WITNESS WHEREOF, this Agreement is agreed to and effective as of the later of the two dates below. LANDLORD: CITY OF CARMEL by and through its Board of Public Works and Safety Mayor TENANT: VERTICAL REALESTATE, INC. B y :Jk~Buek ,4r e si~den't Date: , Member Date: ATTES: ;7 ; , Clerk-Tr~