8.6 Wireless Facility Land Lease AgreementAGENDA SECTION
NO:
ITEM
NO:
Page 1
CITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION
11
ORIGINATING DEPARTMENT:
PARKS & RECREATION
BY: DION LOUTHAN
DATE TIME
8/19/13 4:00 P.M.
FISCAL APPROVAL:
BY:
FINAL APPROVAL:
BY: 114�f
ITEM: Resolution No. 13 -7028 t
A resolution authorizing land lease with Nex -Tech Wireless, for the location of a wireless communication facility
at the Kenwood Cove Aquatic Facility, 701 West Kenwood Park Drive,
BACKGROUND:
On July 8, 2013 the City Commission approved the Special Permit allowing for the location of a proposed
Wireless Communication Facility in a PDD R -1 (Single - Family Residential) district on property addressed as
701 W. Kenwood Park Drive ( Kenwood Cove Aquatic Center). Staff has been working with Nex -tech Wireless
to locate a 150 ft. monopole tower. The tower would be designed as a "stealth" tower, meaning all antennas will
be located inside the pole itself and would allow for up to five (5) carriers. The tower facility will be enclosed in
a 60 ft. by 80 ft. area, bordered by a fence, and screened by landscaping. This lease agreement will govern the
construction and operation of the proposed tower.
The following is a summary of the proposed agreement:
• Area: 60 ft. by 80 ft. enclosed tract.
• Term: Initial term of five years with automatic renewal of up to five additional, five -year terms.
• Lease: Monthly lease payments of $1,875 ($22,500 annually). Subsequent extension terms shall
increase by 11 % over each preceding five year term.
• Insurance: All policies shall name as an additional insured the City of Salina, Kansas. Nex -Tech shall
carry Commercial General Liability with the following policy limits:
• Each occurrence $1,000,000
• General aggregate $2,000,000
• Personal and advertising liability $1,000,000
• Maintenance and repair: Nex -Tech shall be responsible for the area inside the fence and the City shall
be responsible for the area outside the fence.
• Site: Nex -Tech shall fence the area with a material similar in looks and construction to the fence
surrounding Kenwood Cove. Nex -Tech shall plant materials approved by the City on the outside of the
fence.
• Removal and cleanup: Nex -Tech shall remove all equipment no later than 120 days of termination of
the lease.
FISCAL NOTE:
At the conclusion of the agreement, the lease would generate around $890,196 in revenue.
RECOMMENDED ACTION:
1. Approve Resolution 13 -7028 and adopt the lease agreement with Nex -Tech.
2. Reject the agreement.
3. Provide another option or give further direction to staff.
City staff recommends option 1.
Attachment: Contract documents
Cc: Nex -Tech Wireless
LAND LEASE AGREEMENT
This Land Lease Agreement ( "Lease ") is made and entered into as of the day of
August, 2013, by and between the City of Salina, Kansas, 300 West Ash, Salina, Kansas 67401
( "Lessor "), and Nex -Tech Wireless, LLC, 3001 New Way, Hays, Kansas 67601, a Kansas
limited liability company ( "Lessee ").
Recitals
A. Lessee desires to construct a stealth -type monopole telecommunications tower no
more than one hundred and fifty (150) feet high for the purpose of its use by Lessee's customers.
B. Lessor is the owner of a certain tract or parcel of land, situated in Salina, Saline
County, Kansas, and commonly referred to as the `Bicentennial Center Area," as depicted in
Exhibit A attached hereto and made a part hereof ( "Property ").
C. A portion of Lessor's Property is located in an area and elevation well suited to
serve the public interest in enhanced communications services.
D. Lessor wishes to lease to Lessee, and Lessee wishes to lease from Lessor, the
Premises (as defined in Section 2 below), in accordance with the terms and conditions of this
Lease.
1. Contingency. This Lease, and Lessee's ability to take possession of the
Premises, is contingent upon Lessee receiving, and providing written notice to Lessor that it has
received, all necessary certificates, permits, licenses, and other approvals ( "Government
Approvals ") that may be required by any federal, state or local authorities to enable Lessee to use
the Premises for the purposes set forth in this Lease. Upon Lessee's receipt of the Government
Approvals, Lessee shall immediately deliver written notice to Lessor, together with the first
annual rent payment due to Lessor pursuant to Section 4 below. Any other provision herein
contained notwithstanding, no rent payment shall be due until receipt by Lessee of the
Government Approvals. The date of Lessor's receipt of the written notice and first annual rent
payment shall be deemed the "Commencement Date" of this Lease. Provided, however, that if
the Government Approvals are not obtained by Lessee within one (1) year from the date hereof,
either party shall have the right to terminate this Lease by providing thirty (30) days written
notice to the other party.
2. RiL-hts Granted.
2.1. Lessor hereby leases to Lessee that certain parcel of property located at 701 West
Kenwood Park Drive, Salina, Saline County, Kansas, and being described as a 60' by 80' parcel
containing four thousand eight hundred (4,800) square feet, and more fully described in Exhibit
B attached hereto and made a part hereof ( "Premises ").
2.2. Lessor further grants to Lessee, for the term of this Lease, a non - exclusive
easement for ingress and egress to the Premises, seven (7) days a week, twenty -four (24) hours a
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day, and for installing required public utility facilities to service the Premises, including electric
and telephone lines ( "Easement "). The Easement shall be a twenty (20) foot wide easement from
the adjacent parking lot, as described and depicted in Exhibit B. Lessor will allow Lessee to
make necessary curb cuts for access to the Easement and the maintenance of the Easement area
shall be the responsibility of Lessee. Lessee may use the parking lot adjacent to the Premises
while working on the Premises.
3. Term. The initial term of this Lease shall be five (5) years ( "Initial Term ") from
the Commencement Date. The Initial Term shall terminate on the fifth (5th) annual anniversary
of the Commencement Date. Provided, however, that this Lease shall automatically renew for
up to five (5) additional five -year terms (each additional five -year term shall be called an
"Extension Term "), unless Lessee delivers to Lessor written notice of its intent to terminate at
least ninety (90) days before the expiration date of the Initial Term or the then - current Extension
Term, as applicable. Each Extension Term shall be on the same terms and conditions as set forth
in this Lease, except the annual base rent shall increase, effective upon the commencement of
each Extension Term, as provided in Section 4 below. The Initial Term and all Extension Terms
shall be collectively referred to as the "Term ".
4. Lease Payments. Lessee's lease payment shall be payable on a monthly basis, in
advance. During the Initial Term, the monthly Lease payment shall be One Thousand Eight
Hundred Seventy Five Dollars ($1,875.00) ( "Rent "). The initial Rent payment shall be paid on
the Commencement Date, and all subsequent Rent payments shall be payable on or before each
annual anniversary of the Commencement Date. Rent shall be increased at the commencement
of each Extension Term by eleven percent (11 %) over the Rent payable during the immediately
preceding five (5) year term. Each Rent payment shall be mailed to Lessor's address indicated in
Section 22, or such other place as Lessor may designate in writing from time to time. Upon
agreement of the parties, Lessee may pay Rent by electronic funds transfer and in such event,
Lessor agrees to provide to Lessee bank routing information for such purpose. All Rent
payments shall be non - refundable. If Rent due hereunder is not received by Lessor within fifteen
(15) days of the due date, Lessee will pay a late charge equal to five percent (5 %) of the Rent
amount due. Failure to pay such late charge upon demand shall be an event of default hereunder.
Provision for such late charge shall be in addition to all other rights and remedies available to
Lessor hereunder or at law or in equity and shall not be construed as liquidated damages or
limiting Lessor's remedies in any manner.
5. Use of Premises.
5.1. The Premises are leased for the purposes of erecting, installing, operating,
maintaining, and upgrading a communications tower not to exceed one hundred and fifty (150)
feet above ground level ( "Tower "), together with related buildings, improvements, radio
communication structures, backup generator, equipment, cables, and accessories, as required and
necessary to support Lessee's wireless telecommunications system on the Premises (collectively,
with the Tower, the "Communication Facility ").
5.2. Lessee's use of the Premises shall be subject to the following general
requirements:
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(a) The Tower shall be a stealth -type monopole tower, and shall be bronze in
color.
(b) The Tower shall have five (5) antenna locations to accommodate Lessee's
use and any sublessees pursuant to Section 9 below.
(c) Lessee shall enclose the Premises with an eight (8) foot wrought iron
security fence. Lessee shall be responsible for maintaining the enclosed
area and all fencing.
(d) Buildings within the fenced -in area shall not exceed twelve (12) feet in
height.
(e) The fenced -in area shall be surfaced with gravel, ag lime, or similar all -
weather material to allow for vehicle access and to discourage weed
growth.
(f) Lessee shall provide landscaping around the Premises, to be of Xeriscape
design concept. Lessor must approve all aspects of the landscaping design
before installation. Once installed, Lessor will be responsible for the
upkeep and maintenance of the landscaping.
(g) Lessee's construction, installation and use of the Premises shall comply
with Salina Code Section 42 -69, applicable building codes, and applicable
laws, rules and regulations of the Federal Communications Commission
and the State Corporation Commission of the State of Kansas.
5.3. Lessor agrees and hereby grants Lessee unlimited access to the Premises for the
purposes herein stated. It is agreed that only engineers, sublessees, and contractors of Lessee,
including their subcontractors, or persons under their direct supervision, and employees of
Lessee, will be permitted to enter the Premises.
5.4. Notwithstanding anything to the contrary contained herein, Lessee will obtain
approval from Lessor of Lessee's construction drawings showing the planned layout, building
structures, landscaping replacements and all other features prior to any construction or
modifications requiring a building permit. Construction of additional improvements, demolition,
reconstruction, restoration or reconfiguration where a building permit is not required may be
undertaken during the term of this Lease without Lessor's consent, but only following
consultation and coordination with Lessor to minimize interference with Lessor's operations and
activities on the Lessor's property. Following any construction or installation of equipment by
Lessee on the Premises, Lessee shall be responsible for restoration of all areas disturbed by such
construction or installation in accordance with Lessee's plans; provided, however, that following
said restoration Lessor shall maintain the landscaping on that portion of the Lessor's Property
exclusive of the Premises.
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6. Lessee's Equipment. Lessor acknowledges and agrees that all personal property,
equipment, apparatus, generators, fittings, fixtures and trade fixtures installed or stored on the
Premises constitute personal and exclusive property of Lessee or one of Lessee's affiliates,
including without limitation, all telecommunications equipment, the Tower, switches, cables,
wiring and associated equipment or personal property (collectively, the "Equipment "). The
Equipment shall remain at all times the personal property of the Lessee or one of Lessee's
affiliates, and neither the Lessor nor any person claiming by, through or under Lessor shall have
any right, title or interest (including without limitation a security interest) in the Equipment.
Lessee, and Lessee's successors in interest, shall have the right to remove the Equipment at any
time during the Term of this Lease, including without limitation upon the expiration of the Term
of this Lease or its earlier termination. With respect to the holder of any mortgage, deed of trust
or other lien affecting Lessor's interest in the premises, whether existing as of the date hereof or
arising hereafter, Lessor and Lessee hereby agree, acknowledge and declare that the Equipment
is now and shall at all times hereafter remain the personal and exclusive property of Lessee or
one of Lessee's affiliates. The parties further acknowledge and agree that Lessor shall have no
right or authority to grant a lien or security interest in or to any of the Equipment.
7. Utility Services. Lessee and its sublessees shall be solely responsible for the
payment of all charges incurred for their use of utility services at the Premises including, without
limitation, gas, electricity, water, and telephone. Lessee shall bear the costs of any additional
installations to provide utilities.
8. Assignment. Lessee shall not assign this Lease or any rights hereunder, without
first obtaining the written consent of Lessor. Notwithstanding the foregoing, Lessor
acknowledges and agrees that Lessee shall have the right to grant a security interest in its right
and interest under this Lease. Lessor further agrees that any person foreclosing or otherwise
realizing upon such a security interest granted by Lessee shall succeed to, and, shall have the
benefits of, all Lessee's rights, title and interest under this Lease.
9. Sublease.
9.1 Lessee may sublease any number of antenna locations on the Tower and related
space on the Premises, at its sole discretion, upon notice to Lessor. Any sublease that is entered
into by Lessee shall be expressly made subject to the terms, conditions, and limitations of this
Lease and shall be binding upon the successors, assigns, heirs, and legal representatives of the
respective parties hereto. The term "sublease" and any other similar term shall apply to any
situation by which Lessee allows a third party use of the Premises for co- location, whether it be
by formal sublease, license, or other agreement. All rights and responsibilities of Lessee set
forth in this Lease shall be enjoyed by and binding on any sublessee. Notwithstanding any
sublease, Lessee shall at all times remain fully responsible and liable for the payment of the
rental herein specified and for compliance with all of Lessee's other obligations under this Lease.
9.2 The parties recognize that, during the Term of this Lease, Lessor may desire to
utilize space on the Premises for co- location of its own telecommunications facilities.
Accordingly, upon written request by Lessor, Lessee shall allow Lessor to co- locate on the
Premises in accordance with the established co- location procedures of Lessee. Lessor shall pay
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annual rent in a negotiated amount not to exceed the average rent paid by Lessee for its co-
location on the following three towers located in Salina, Kansas: Salina Railroad #401; Salina
ECRA #405; and Salina Mall #406.
10. Inspection. Upon reasonable advance notice, Lessor and its agents and
representatives shall be entitled to enter upon and inspect the Premises at any time during normal
business hours. Lessee (or its designated representative) shall have the right to accompany
Lessor, its agents and representatives during any such inspection, and Lessor agrees to
coordinate with Lessee, after providing reasonable advance notice, to schedule the inspection at a
mutually convenient time.
11. Maintenance and Repairs. Lessee covenants and agrees, at its sole cost and
expense: (a) to keep and maintain the Premises, and the Communication Facility located thereon,
in good and safe order and repair, and in proper operating condition; and (b) to promptly repair
or replace all damage to the Premises and the Communication Facility. Lessor shall have no
obligation to repair or maintain the Premises or the Communication Facility and shall have no
liability for any damages or injury arising out of any condition or occurrence causing a need for
such repairs.
12. Removal and Cleanup at End of Term or Upon Termination.
12.1. Lessee shall, in anticipation of and no later than the expiration of the Term, or
within one hundred twenty (120) days after any earlier termination of this Lease, remove all
portions of the Communication Facility placed upon the Premises and restore the real estate to its
original condition at Lessee's cost including, without limitation, the concrete barrier that has
been placed above ground. The concrete foundation that is underground may be left with the
real estate. If such time for removal causes Lessee to remain on the Premises after the expiration
of the Term or after termination of this Lease, this Lease shall be deemed extended for the
limited purpose of the removal of the Communication Facility and restoration of the Premises,
and Lessee shall pay rent at the existing rate, on a pro -rated basis, until such time as the
Communication Facility is removed and the restoration of the real estate is approved by Lessor.
12.2. If Lessee fails to remove the Communication Facility and restore the Premises to
its original condition within the time required by this Section 12, then Lessor may, at its option
and without liability to Lessee for any loss or damage that may result, remove the
Communication Facility and restore the Premises. Lessee shall pay Lessor, within fifteen (15)
days of Lessee's receipt of written notice, the cost of such removal and restoration, plus fifteen
percent (15 %) of the amount thereof to cover the cost of administering the removal and
restoration.
13. Holdover. Lessee has no right to retain possession of the Premises or any part
thereof beyond the expiration of the Term or the applicable removal period set forth in Section
12 above. If Lessee holds over in violation of Section 12 and this Section 13, then the Rent then
in effect payable from and after the time of the expiration of the term or earlier removal period
set forth in Section 12 shall be equal to the Rent applicable during the time period immediately
preceding such expiration or earlier termination, on a pro -rated basis.
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14. Hazardous Substances.
14.1. Lessor represents and warrants, to the best of Lessor's knowledge, to Lessee and
Lessee's successors and assigns that:
(a) no dangerous, toxic or hazardous pollutants, contaminants, chemicals,
wastes, materials, or substances, as defined in or governed by the
provisions of any federal, state or local law, statute, code, ordinance,
regulation, requirement or rule relating thereto (collectively, the
"Environmental Regulations "), including without limitation
ureaformaldehyde, dioxins, polycholorinated biphenyls, asbestos,
asbestos - containing materials, nuclear fuel wastes, and petroleum
products, or any other wastes or substances which would subject the
owner or occupant of the Premises to any damages, penalties or liabilities
under any applicable environmental regulation (collectively, the
"Hazardous Substances ") are now or have ever been located, produced,
treated, transported, incorporated, discharged, emitted, released, deposited
or disposed of in, upon, under, over or from the Premises;
(b) no threat exists of a discharge, release or emission of a Hazardous
Substance upon or from the Premises into the environment;
(c) the Premises have not ever been used as a mine, a landfill, a dump or other
disposal facility, an industrial manufacturing facility, or a gasoline service
station;
(d) no underground storage tank is now located in or under the Premises, or
has previously been located therein but has been removed therefrom;
(e) no violation of any Environmental Regulation now exists or has ever
existed in, upon, under, over or from the Premises;
(f) no notice of any such violation or any alleged violation of an
Environmental Regulation has been issued or given by any governmental
entity or agency, and there is not now nor has there ever been any
investigation or report involving the premises by any governmental
agency or entity which in any way relates to Hazardous Substances;
(g) no person, party or governmental agency or entity has given any notice of
or asserted any claim, cause of action, penalty, cost or demand for
payment or compensation, whether or not involving any injury or
threatened injury to human health, the environment or natural resources,
resulting or allegedly resulting from any activity or event described in (a)
above;
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(h) there are not now, nor have there ever been, any actions, suits, proceedings
or damage settlements relating in any way to Hazardous Substances in,
upon, under, over or from the Premises;
(i) the Premises are not listed in the United States Environmental Protection
Agency's National Priorities List of hazardous waste sites or any other
state or local governmental agency; and
(j) the Premises are not subject to any lien or claim for lien in favor of any
governmental entity or agency as a result of any release or threatened
release of any Hazardous Substance.
14.2. Lessor and Lessee each agree not to use any dangerous, toxic or hazardous
pollutants, chemicals, materials or substances as defined in or governed by the provisions of any
federal, state of Kansas or local law, statute, code, ordinance, regulation, requirement or rule
relating thereto (collectively, the "Environmental Regulations ") which would subject the other
party or any other occupant of the Premises to any damages, penalties or liabilities under any
applicable environmental regulation.
15. Other Leases. Lessor shall not grant the right to construct or place any additional
commercial wireless telecommunication facilities within the area commonly known as the
"Bicentennial Center Area" as depicted in Exhibit A attached hereto, until all available wireless
locations on Lessee's Tower are used by Lessee or sub - leased. The parties acknowledge and
agree that this section shall not be construed to affect Lessor's right to place its own wireless
telecommunication facilities within the Bicentennial Center Area, if such facilities are used for
Lessor's provision of public telecommunications services.
16. Taxes. Lessee agrees to pay all real and personal property taxes that may be
levied upon the Premises or any improvements, fixtures, or personal property located thereon.
Upon Lessor's receipt of any statement for property taxes, Lessor will invoice Lessee for direct
payment to the Saline County Treasurer. Failure to pay any such real or personal property taxes
shall for purposes of this Lease be the equivalent of a failure to pay Rent when due. Upon
demand, Lessee shall furnish Lessor with reasonable evidence of Lessee's compliance with this
section.
17. Interference. Lessee agrees to install equipment of the type and frequency which
will not cause harmful interference that is measurable in accordance with then existing industry
standards to any equipment of Lessor or other lessees of the Lessor's Property, which existed
prior to the date this Lease is executed by the parties. In the event any after - installed Lessee's
equipment causes such interference, and after Lessor has notified Lessee in writing of such
interference, Lessee, at its sole expense, will take all commercially reasonable steps necessary to
correct and eliminate the interference, including but not limited to, at Lessee's option, powering
down such equipment and later powering up such equipment for intermittent testing. The parties
acknowledge that there will not be an adequate remedy at law for noncompliance with the
provisions of this section and therefore, Lessor shall have the right to equitable remedies, such
as, without limitation, injunctive relief and specific performance.
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18. Insurance Requirements.
18.1. Lessee agrees to obtain insurance coverage as specified in Exhibit C, attached
hereto, and shall not make any modification or change from these specifications without the prior
approval of Lessor. If Lessee subcontracts any of its obligations under this Lease, Lessee shall
require each such subcontractor to obtain insurance coverage as specified in Exhibit C. Failure
of Lessee or its subcontractors to comply with these requirements shall not be construed as a
waiver of these requirements or provisions and shall not relieve Lessee of liability.
18.2. All insurance policies shall be issued by insurance companies rated no less than
A- VII in the most recent "Bests" insurance guide, and admitted in the State of Kansas. Except
as otherwise specified in Exhibit C, all such policies shall be in such form and contain such
provisions as are generally considered standard for the type of insurance involved.
18.3. The parties acknowledge that Lessee has provided Lessor with a certificate of
insurance listing Lessee as the Certificate Holder and evidencing compliance with the insurance
requirements in this Lease. Lessee shall provide Lessor with an updated certificate of insurance
within thirty (30) days of each policy renewal. Lessor reserves the right to require complete
certified copies of all insurance policies procured by Lessee pursuant to this Lease, including any
and all endorsements affecting the coverage required hereunder.
19. Indemnification. To the fullest extent permitted by law, Lessee shall defend,
indemnify and hold harmless Lessor, its agents, representatives, officers, officials and employees
from and against all claims, damages, losses and expenses (including but not limited to attorney
fees and court costs) attributable to bodily injury, sickness, disease, death, or injury to,
impairment, or destruction of property, including loss of use resulting therefrom, to the extent
that such claims, damages, losses, and expenses relate to, arise out of, or are alleged to have
resulted from the wrongful acts, errors, mistakes, omissions, or defective work or services of
Lessee, its employees, agents, or any tier of subcontractors during the construction, installation,
operation, maintenance, repair, or use of the leased Premises.
20. Default.
20.1. In the event there is a breach by Lessee with respect to any of the provisions of
this Lease or its obligations under it, including the payment of Rent, Lessor shall give Lessee
written notice of such breach. After receipt of such written notice, Lessee shall have fifteen (15)
days in which to cure any monetary breach and thirty (30) days in which to cure any non -
monetary breach, provided Lessee 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 Lessee commences the cure within the thirty (30) day period and thereafter
continuously and diligently pursues the cure to completion. Furthermore, if Lessee files a
petition in bankruptcy or insolvency, or for reorganization or arrangement under the bankruptcy
or insolvency laws, or voluntarily takes advantage of any such laws by answer or otherwise, or
dissolves or makes an assignment for the benefit of creditors, or involuntary proceedings under
any such laws or for the dissolution of Lessee are instituted against Lessee, or a receiver or
trustee is appointed for the Premises or for all or substantially all of Lessee's property, and such
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proceedings are not dismissed or such receivership or trusteeship vacated within ninety (90) days
after such institution or appointment, then Lessor may terminate the Lease upon sixty (60) days
notice. Lessor may not maintain any action or effect any remedies for default against Lessee
unless and until Lessee has failed to cure the breach within the time periods provided in this
section.
20.2. In the event there is a breach by Lessor with respect to any of the provisions of
this Lease or its obligations under it, Lessee shall give Lessor written notice of such breach.
After receipt of such written notice, Lessor shall have thirty (30) days in which to cure any such
breach, provided Lessor 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 Lessor commences the cure within the thirty (30) day period and thereafter continuously and
diligently pursues the cure to completion. Lessee may not maintain any action or effect any
remedies for default against Lessor unless and until Lessor has failed to cure the breach within
the time periods provided in this section.
21. Remedies. Upon a default, the non - defaulting party may at its option (but
without obligation to do so), perform the defaulting party's duty or obligation on the defaulting
party's behalf. The costs and expenses of any such performance by the non - defaulting party
shall be due and payable by the defaulting party upon invoice therefor. In the event of a default
by either party with respect to a material provision of this Lease, without limiting the non -
defaulting party in the exercise of any right or remedy which the non - defaulting party may have
by reason of such default, the non - defaulting parry may terminate the Lease and /or pursue any
remedy now or hereafter available to the non - defaulting party under applicable law; provided,
however, the non - defaulting party shall use reasonable efforts to mitigate its damages in
connection with a default by the defaulting party.
22. Notices.
22.1. All notices required or permitted to be given pursuant to this Lease shall be in
writing and delivered personally or sent by registered or certified mail, return receipt requested,
or by generally recognized, prepaid, commercial courier or overnight air courier service. Notice
shall be considered given when received on the date appearing on the return receipt, but if the
receipt is not returned within five (5) days, then five (5) days after mailed, if sent by registered or
certified mail or commercial courier service; or the next business day, if sent by overnight air
courier service. Notices shall be addressed as appears below for each party, provided that if any
party gives notice of a change of name or address, notices to the giver of that notice shall thereafter
be given as demanded in that notice.
If to Lessor: City Clerk
P.O. Box 736
Salina, KS 67402 -0736
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If to Lessee: Nex -Tech Wireless, LLC
3001 New Way
Hays, KS 67601
Attention: Director Network Operations /Jeff Kisner (785) 621 -3650
with a copy to: Nex -Tech Wireless, LLC
3001 New Way
Hays, KS 67601
Attention: Site Acquisition/Richard Gaito
22.2. All payments sent by Lessee to Lessor for billings should be addressed as follows:
City Clerk
P.O. Box 736
Salina, KS 67402 -0736
23. Compliance with Applicable Law. During the Term, Lessor shall maintain the
Property in compliance with all applicable laws, rules, regulations, ordinances, directives,
covenants, easements, zoning and land use regulations, and restrictions of record, permits, and
building codes, now in effect or which may hereafter come into effect (collectively, the "Laws ").
Lessee, shall in respect to the Premises and at Lessee's sole cost and expense, comply with (a) all
Laws relating to Lessee's use of the Premises; and (b) all building codes requiring modifications
to the Premises due to the improvements being made by Lessee on the Premises.
24. Attorney Fees. If any suit or action is instituted by either party hereunder,
including all appeals, the prevailing party in such suit or action shall be entitled to recover
reasonable attorney fees and expenses from the non - prevailing party, in addition to any other
amounts to which it may be entitled.
25. Applicable Law; Venue. This Lease and its validity, construction and
performance shall be governed by the laws of Kansas. In the event of any legal action to enforce or
interpret this Lease, the sole and exclusive venue shall be in the Saline County, Kansas District
Court.
26. Interpretation. This Lease shall be interpreted according to its fair meaning, and
not in favor of or against any party.
27. Severabil�. The unenforceability, invalidity, or illegality of any provision of this
Lease shall not render the other provisions unenforceable, invalid, or illegal.
28. Authority and Consent to Transaction. Each party represents to the other that
the person executing this Lease has full and legal authority to bind such party to the terms of this
Lease, and that the execution and delivery of this Lease have been duly and validly authorized by
the governing body of each party.
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29. Persons Bound. This Lease shall extend to and bind the heirs, executors,
administrators, trustees, successors and authorized assigns of the parties hereto.
30. Counterparts. This Lease may be executed in any number of counterparts, each of
which shall be deemed an original, or in multiple originals, and all such counterparts or originals
shall for all purposes constitute one agreement.
31. Amendments. Neither this Lease nor any of its terms may be changed or modified,
waived, or terminated except by an instrument in writing signed by an authorized representative of
the party against whom the enforcement of the change, waiver, or termination is sought.
32. Waiver. No failure or delay by a parry hereto to insist on the strict performance of
any term of this Lease, or to exercise any right or remedy consequent to a breach thereof, shall
constitute a waiver of any breach or any subsequent breach of such term. No waiver of any breach
hereunder shall affect or alter the remaining terms of this Lease, but each and every term of this
Lease shall continue in full force and effect with respect to any other then existing or subsequent
breach thereof.
33. Conflict Resolution. No interpretation of this Lease shall be allowed to fmd the
City has agreed to binding arbitration.
34. No Third Party Beneficiaries. Solely the parties to this Lease shall have rights and
may make claims under this Lease. There are no intended third party beneficiaries under this Lease,
and no third parties shall have any rights or make any claims hereunder.
35. Typewritten or Handwritten Provisions. Typewritten or handwritten provisions
inserted or attached shall supersede all conflicting printed provisions.
36. Feminine - Masculine, Singular- Plural. Wherever used, singular shall include the
plural, plural the singular, and use of any gender shall include all genders.
37. Headings. The headings of the sections of this Lease are included for the
purposes of convenience only and shall not affect the interpretation of any provision hereof.
38. Merger Clause. These terms are intended by the parties as a complete, conclusive
and final expression of all the conditions of their Lease. No other promises, statements, warranties,
agreements or understandings, oral or written, made before or at the signing thereof, shall be
binding unless in writing and signed by all parties and attached hereto.
{Signature Page Follows}
Page 11 of 21
IN WITNESS WHEREOF, each party has executed this Lease on the date set forth
below.
NEX -TECH WIRELESS, LLC
STATE OF KANSAS, COUNTY OF
Jeff Kisner, Director of Network Operations
. SS:
This instrument was acknowledged before me on August , 2013, by Jeff Kisner, as
Director of Network Operations of Nex -Tech Wireless, LLC.
Notary Public
CITY OF SALINA, KANSAS
0
Barbara V. Shirley, Mayor
ATTEST:
Lieu Arm Elsey, CMC, City Clerk
STATE OF KANSAS, SALINE COUNTY, ss:
This instrument was acknowledged before me on August , 2013, by Barbara V.
Shirley as Mayor and Lieu Ann Elsey as City Clerk for the City of Salina, Kansas.
Notary Public
Page 12 of 21
EXHIBIT A
DEPICTION OF LESSOR'S PROPERTY
Page 13 of 21
EXHIBIT B
DESCRIPTION OF LEASED PREMISES AND EASEMENTS
Description of Leased Premises:
A Lease area situated on a tract of land located in the Southeast Quarter (SE14) of Section
Thirteen, (13), Township Fourteen (14) South, Range Three (3) West of the Sixth Principal
Meridian, Saline County, Kansas, more particularly described as follows, to wit:
COMMENCING (P.O.C.) at the Northwest corner (NWc) of the Southeast Quarter (SE4)
of said Section Thirteen (13), Thence S89 °56'01" E along the North line of said Southeast
Quarter (SE /4) a distance of 665.78 feet; Thence S 00 °03'59" W a distance of 289.21feet
to the POINT OF BEGINNING (P.O.B.Lease); Thence S 50 °25'46" E a distance of
80.00 feet; Thence S 39 °34'14" W a distance of 60.00 feet; Thence N 50 °25'46" W a
distance of 80.00 feet; Thence N 39 °34'14" E a distance of 60.00 feet to the POINT OF
BEGINNING (P.O.B.Lease).
Said tract contains 4800 square feet more or less and is subject to any easements and or right(s)
of way of record.
Description of Access Easement:
A 20' wide Access Easement situated on a tract of land located in the Southeast Quarter (SE14)
of Section Thirteen, (13), Township Fourteen (14) South, Range Three (3) West of the Sixth
Principal Meridian, Saline County, Kansas, being 10'on each side of Centerline more particularly
described as follows, to wit:
COMMENCING (P.O.C.) at the Northwest corner (NWc) of the Southeast Quarter (SE4)
of said Section Thirteen (13), Thence S 89 05601" E along the North line of said
Southeast Quarter (SE /4) a distance of 665.78 feet; Thence S 00 °03'59" W a distance of
289.21feet; Thence S 50 °25'46" E a distance of 40.00 feet to the POINT OF
BEGINNING (P.O.B. Access); Thence N 39 °34'14" E a distance of 60.00 feet to the
POINT OF TERMINATION (P.O.T. Access)
Description of Utility Easement:
A Utility Easement situated on a tract of land located in the Southeast Quarter (SE14) of Section
Thirteen, (13), Township Fourteen (14) South, Range Three (3) West of the Sixth Principal
Meridian, Saline County, Kansas, being 10' on each side of Centerline more particularly
described as follows, to wit:
COMMENCING (P.O.C.) at the Northwest corner (NWc) of the Southeast Quarter (SE4)
of said Section Thirteen (13), Thence S 89 °56'01" E along the North line of said
Southeast Quarter (SE /4) a distance of 549.44 feet; Thence S 00 °03'59" W a distance of
175.62 feet to the POINT OF BEGINNING (Utility); Thence S 50 °25'46" E a distance of
184.30 feet; Thence N 39 °34'14" E a distance of 40.02 feet; Thence S 50 °25'46" E a
distance of 61.15 feet; Thence S 35 °04'08" W a distance of 80.27 feet; Thence S
50 °25'46" E a distance of 32.21 feet; Thence S 69 °17'33" E a distance of 179.21 feet;
Thence S 89 °03'32" E a distance of 220.18 feet; Thence S 22 °31'43" W a distance of
Page 14 of 21
16.13 feet; Thence N 89 °03'32" W a distance of 216.86 feet; Thence N 69 °17'33" W a
distance of 184.32 feet; Thence N 50 °25'46" W a distance of 52.15 feet; Thence N
39 °34'14" E a distance of 35.00 feet; Thence N 50 °25'46" W a distance of 235.89 feet;
Thence N 44 °06'32" E a distance of 20.06 feet to the POINT OF BEGINNING (Utility),
Said tract contains 0.3 Acres feet more or less and is subject to any easements and or
right(s) of way of record.
Page 15 of 21
EXHIBIT C
INSURANCE REQUIREMENTS
Pursuant to Section 18 of the Land Lease Agreement ( "Lease "), Lessee shall obtain, pay for,
and maintain — and shall require each of its contractors and subcontractors to obtain and maintain —
for the duration of the Lease, policies of insurance meeting the following requirements:
1. General Requirements.
A. Additional Insured. With the exception of the workers' compensation policy to
be obtained by Lessee hereunder, all policies shall name as an additional insured the City of
Salina, Kansas ( "City "), its agents, representatives, officers, officials, and employees as
additional insured(s). Insurance for the additional insured shall extend to Products /Completed
Operations and be as broad as the insurance for the named insured, including defense expense
coverage, and shall apply as primary and non - contributory insurance before any other insurance
or self - insurance, including any deductible, maintained by, or provided to, the additional
insured(s).
B. Waiver of Subrogation. Where allowed by law, all policies will include a waiver
of subrogation in favor of the City, its agents, representatives, officers, officials, and employees.
C. Claims Made Policies. If coverage is written on a claims -made basis for any of
the policies required by the Lease, Lessee must maintain the coverage for a minimum of two (2)
years after the Term of the Lease.
2. Specific Coverage Requirements.
A. Commercial General Liability ( "CGL "). Lessee shall maintain CGL coverage
written on ISO Occurrence form CG00 01 or an industry equivalent and shall cover liability
arising from Personal Injury, Bodily Injury, Property Damage, Premises and Operations,
Products and Completed Operations, Contractual Liability, Independent Contractors and
Advertising Injury. The policy limits shall not be less than the following:
• Each occurrence $1,000,000
• General aggregate $2,000,000
• Personal and Advertising Liability $1,000,000
The policy shall contain an endorsement that modifies the general aggregate to apply separately
to each project. Lessee shall maintain the Products and Completed Operations liability coverage
for a period of at least two (2) years after the Term of the Lease.
B. Business Automobile Liability ( "BAL "). Lessee shall maintain BAL coverage
written on ISO form CA 00 01 or an industry equivalent. Coverage shall be applicable to all
autos and other vehicles subject to compulsory auto liability laws that are owned, hired, rented or
used by Lessee and include automobiles not owned by but used on behalf of Lessee. The BAL
policy limits shall not be less than the following:
Page 16 of 21
• Combined single limit $1,000,000
C. Workers' CgMensatiopImployer's Liability. Lessee shall maintain workers'
compensation and employer's liability coverage with policy limits not less than the following:
Workers' Compensation (Coverage Part A)
o Statutory
Employer's Liability (Coverage Part B)
o $100,000 each accident
o $500,000 disease— policy limit
o $100,000 disease— each employee
Lessee shall be responsible for all premiums and retention or deductible expense for any and all
policies shown above.
Page 17 of 21
MEMORANDUM OF LEASE AGREEMENT
A Land Lease Agreement was made and entered into as of the day of August, 2013, by
and between the City of Salina, Kansas, 300 West Ash, Salina, Kansas, hereinafter called "Lessor,"
and Nex -Tech Wireless, LLC, 3001 New Way, Hays, Kansas 67601, a Kansas limited liability
company, hereinafter called "Lessee ".
Lessor and Lessee entered into a Land Lease Agreement for a Communications Site on the
day of August , 2013, for the purpose of installing, operating and maintaining a
communications facility. Said Lease is set to expire on the day of 2018, subject
to automatic renewal terms. All of the foregoing are set forth in the Land Lease Agreement in the
offices of Lessee.
Lessor granted and conveyed permission to Lessee to construct, operate and install
communications structures and equipment as required and necessary to support Lessee's wireless
telecommunications system on the following premises:
IN WITNESS WHEREOF, we have executed this Memorandum of Lease Agreement on this
day of .2013.
NEX -TECH WIRELESS, LLC
IM
Jeff Kisner, Director of Network Operations
STATE OF KANSAS, COUNTY OF SS:
This instrument was acknowledged before me on
Kisner, as Director of Network Operations of Nex -Tech Wireless, LLC.
Notary Public
CITY OF SALINA, KANSAS
Barbara V. Shirley, Mayor
ATTEST:
Lieu Ann Elsey, CMC, City Clerk
STATE OF KANSAS, SALINE COUNTY, ss:
2013, by Jeff
This instrument was acknowledged before me on . 2013, by Barbara V.
Shirley as Mayor and Lieu Ann Elsey as City Clerk for the City of Salina, Kansas.
Notary Public
Page 18 of 21
RESOLUTION NUMBER 13 -7028
A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A LEASE AGREEMENT
WITH NEX -TECH WIRELESS FOR THE LOCATION OF A WIRELESS
COMMUNICATION FACILITY AT THE KENWOOD COVE AQUATIC FACILITY
LOCATED AT 701 W. KENWOOD PARK DRIVE.
BE IT RESOLVED by the Governing Body of the City of Salina, Kansas:
Section 1. That the Mayor is hereby authorized to execute a lease agreement with Nex -Tech Wireless
for the location of a wireless communication facility at the Kenwood Cove Aquatic Facility, located at
701 W. Kenwood Park Drive, subject to the terms and conditions of the agreement.
Section 2. That the City Clerk is hereby directed to file the original agreement and retain according to
the City of Salina Records Management Policy.
Section 3. That this resolution shall be in full force and effect from and after its adoption.
Adopted by the Board of Commissioners and signed by the Mayor this 19th day of August, 2013.
Barbara V. Shirley, Mayor
(SEAL)
ATTEST:
Lieu Ann Elsey, CMC, City Clerk