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Land Lease Agreement (BC) 1 ' • LAND LEASE AGREEMENT This Land Lease Agreement ("Lease") is made and entered into as of the I(4414-1/4 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 (1 50) 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 monthly 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 monthly 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. Rights Granted. 2.1. Lessor hereby leases to Lessee that certain parcel of property located at 701 West Kellwood Park Drive, Salina, Saline County, Kansas, and being described as a 60' by S0' 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 Page 1 of 18 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 (5'h) 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 monthly 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 the first day of each calendar month during the Term. The Rent payment for each partial calendar month shall be prorated appropriately. 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 fitly (I50) 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'). Page 2 of 18 5.2. Lessee's use of the Premises shall be subject to the following general requirements: (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. (0 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. Page 3 of 18 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. Assitnment. 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 Page 4 of 18 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. • Page 5 of 18 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"), ncluding 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; (0 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; Page 6 of 18 • (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. Paae 7 of 18 • 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 1-Colder 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, omission s, 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 (1.5) 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) clays if the nature of the cure is such that it reasonably requires more than thirty (30) clays 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 Page 8 of 18 • 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 party 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 Page 9 of 18 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 cone 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 he 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. Severability. 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 lull 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. Page 10 of 18 29. Persons Bound. This Lease shall extend to and bind the heirs, executors, administrators, trustees, successors and authorized assigns of the panics 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 party 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 find 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 18 IN WITNESS WHEREOF, each party has executed this Lease on the date set forth below. NEX-TECH WIRELESS, LLC By: Je I,' , Director of Network Operations STATE OF KANSAS, COUNTY OF , SS: This instrument was acknowledged before me on August 22, 2013, by Jeff Kisner, as Director of Network Operations of Nex-Tech Wireless, LLC. ti NOTARY PUBLIC-State of Kansas Notary Public 2,_ MELINDA DOUGHERTY --raa My Appt.Expires.s-7 Z/Y CITY OF SALINA, KANSAS By: A r . B rbara V. Shirley, Mayor ATTEST: qii.SLALki4/1/ _ Lieu Ann Elsey, CMC, Cit Jerk STATE OF KANSAS, SALINE COUNTY, ss: This instrument was acknowledged before me on August I A -, 2013, by Barbara V. Shirley as Mayor and Lieu Ann Elsey as City Clerk for the City of Salina, Kansas. SHANDI L.WICKS Notary Public-State of Kansas a ' . r • My Appt.Expires est /.d Nota Public Page 12 of 18 EXHIBIT A DEPICTION OF LESSOR'S PROPERTY ke y7� ,[;.411 t,. 1�� v 3 6 ,,, 4 Z �Ir.� A6N l 's Plit Tt ju- � -,rip � a,l� i1 l port+ wit:-. 1,1" iTz1;�,S G y".. 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'� fi ,st',. x v Z'-t k I�1.#-?"1 as 4 i/ Page 13 of 18 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 (SE/4) 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 (NW/c) of the Southeast Quarter (SE/4) 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 289.21 feet 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: The'Accesg Easement granted to Lessee is generally described below. However, Lessee will obtain a stamped survey depicting and describing the Access Easement, at its own cost, which, together with a separately recorded easement instrument from Lessor to Lessee, shall become a part hereof and shall control in the event of minor boundary discrepancies between it and the following described Access Easement: - A 20' wide Access Easement situated on a tract of land located in the Southeast Quarter (SE/4) 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 (NW/c) of the Southeast Quarter (SE/4) of said Section Thirteen (13), Thence S 89°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 289.21 feet; 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: The Utility Easement granted to Lessee is generally described below. However, Lessee will obtain a stamped survey depicting and describing the Utility Easement, at its own cost, which, together with a separately recorded easement instrument from Lessor to Lessee, shall become a part hereof and shall control in the event of minor boundary discrepancies between it and the following described Utility Easement: Page 14 of 18 A Utility Easement situated on a tract of land located in the Southeast Quarter (SE/4) 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 (N\V/c) of the Southeast Quarter (SE/4) 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 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 more or less and is subject to any easements and or right(s) of way of record. Page 15 of 18 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 ("COL"). 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 18 • . Combined single limit S1,000,000 C. Workers' Compensation/Employer'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 • Employers Liability(Coverage Part B) o S100,000 each accident o $500,000 disease—policy limit o S100,000 disease—each employee Lessee shall be responsible for all premiums and retention or deductible expense for any and all policies shown above. - - -- - - - - - -- P a g e • 17 of 18 MEMORANDUM OF LEASE AGREEMENT A Land Lease Agreement was made and entered into as of the 25 day of August, 2013, by and between the City of Salina, Kansas, 300 West Ash, Salina, Kansas, hereinafter called "Lessor," and Nex-Tech Wireless, LLC, 3001 New Way, Hays; Kansas 67601, a Kansas limited liability company, hereinafter called "Lessee". Lessor and Lessee entered into a Land Lease Agreement for a Communications Site on the day of August 2g , 2013, for the purpose of installing, operating and maintaining a communications facility. Said Lease is set to expire on the 27 clay of Q , 2018, subject to automatic renewal terms. All of the foregoing are set forth in the Land L ase Agreement in the offices of Lessee. Lessor granted and conveyed permission to Lessee to construct, operate and install communications structures and equipment as required and necessary to support Lessee's wireless telecommunications system on the following premises: IN WITNESS WHEREOF, we have executed this Memorandum of Lease Agreement on this day of /4t45/.1271 28 . 2013. — — NE\-TECH WIRELESS, NOTARY PUBLIC State of Kansas i rte MELI NDA DOUGHERTY / == My'APpt.Expires$-•7 20/f By: / Y J ' .�. r, Director of Network Operations STATE OF KANSAS, COUNTY OF tC,4) , SS: This instrument was acknowledged before me on 4ad 17Y____, 2013, by Jeff Kisner, as Director of Network Operations of Nex-Tech Wireless, L C. a sa Notary Public CITY OF 5 ApIQ% 'AS By: TEST:. AA F-I Aaron nuSehol+tr,Vice mayor Lieu Ann Elsey, CMC, ity Clerk STATE OF KANSAS, SALINE COUNTY, ss: ,tc �eml�/ Aaron 1•-1a+sehol+er This instrument was acknowledged before me o .1C , 2013, by Bnrbttra . &14+4Lley as,Mayor and Lieu Ann Elsey as City Clerk for the City of Salina, Kansas. Vice- ∎ � 9 .a coolJX SHANDI L. WICKS l Not Public t°-'� Notary Public- State of Kansas JI MYAppt.Expires ./ide/eb Page 18 of 18 ACORP„ CERTIFICATE OF LIABILITY INSURANCE DATE(I"Ia/DDIT I 08/20/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER CONTACT NAME: Insurance Planning, Inc. p/c,I4e,Ertl: 785.625,5605 Ir ,No),785.625.8388 3006 Broadway Avenue ADDRESS: P. 0. Box 100 PRODUCER CUSTOMER ID In Hays, KS 67601 INSURER(S)AFFORDING COVERAGE NAICO INSURED INSURER A: Continental Western Insur Co. 10804 Nex-Tech Wireless LLC INSURER a: 3001 New Way INSURER C: Hays, KS 67601 INSURERO: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 13/14 Certs REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN.THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTp I TYPE OF INSURANCE W SR�SWVD I POLICY NUMBER I(MIDCYD )I(MMID YDIYYYY)I LIMITS GENERAL LIABILITY RUP272175126 01/01/2013 01/01/2014 EACH OCCURRENCE 5 1,000,000 DAMAGE TO RENTED X COMMERCIAL GENERAL LIABILITY -PREMISES(Ea occurrence) $ 300,000 I I CLAIMS-MADE X OCCUR MED EXP(My a e person) S 5,000 A I PERSONAL&ADV INJURY S 1,000,000 GENERAL AGGREGATE $ 2,000,000 I�GENL AGGREGATE OMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,000 I POLICY A I JEG I A I LOG 5 AUTOMOBILE LIABILITY RUP272175126 01/01/2013 01/01/2014 COMBINED SINGLE LIMIT (Eaamdeni) $ 1,000,000 X ANY AUTO BODILY INJURY(Per pason) I S ALL OWNED AUTOS BODILY INJURY(Per accident) S A SCHEDULED AUTOS PROPERTY DAMAGE X HIRED AUTOS (Per accident) X NON-OWNED AUTOS 5 I S (UMBRELLA UAB I ICCCUR CU272175426 01/01/2013 01/01/2014 EACH OCCURRENCE $ 10,000,000 EXCE55 LNB CWMS-MADE AGGREGATE 5 10,000,000 A DEDUCTIBLE 5 X RETENTION S 0 5 WORKERS COMPENSATION WC272175326 01/01/2013 01/01/2014 X I NC STATLL I IOTK TORY LIMITS ER AND EMPLOYERS'PROPRIETOR/PARTNER/EXECUTIVE YIN ANY E.L.EACH ACCIDENT $ 1,000,000 A OFFICER/MEMBE EXCLUDED? NIA (Mandatory In NW E.L.DISEASE-EA EMPLOYEE 5 1,000,000 II yes.domino DESCRIPTION O OF OF O PERATIONS below E.L.DISEASE-POLICY LIMIT IS 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS(VEHICLE$ Attach ACORD 101,Additional Remarks Schedule,U more space Is required) RE: Bicentennial Tower Salina KS 30 day notice is no longer applicable in KS. Certificate holder is an additional insured in regards to the Gen Liab & Auto Liability. Waiver of Subrogation applies to the General Liability, Auto & Workers Compensation Coverage. Gen Liab is Primary & Non Contributory. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Salina AUTHORIZED REPRESENTATIVE gdenta 300 W Ash Street Sal,ina, KS 67401 Doris Pilatus/PILADO ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25(2009/09) The ACORD name and logo are registered marks of ACORD h,5 Ala I I i3 p A CORQ AGENCY CUSTOMER ID: LOC#: ADDITIONAL REMARKS SCHEDULE Page of AGENCY NAMED INSURED Insurance Planning, Inc. Nex-Tech Wireless LLC POUCYNUMBER Hays, KS 67601 CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: ACORD Certificate of Liability Insurance Garage Liability INSR ADD,- POLICY EFFECTIVE POLICY EXPIRATION LTR INSRD POLICY NUMBER DATE IMMIDD(fY) DATE(MMIDDM/) LIMITS AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER TIWN EA ACC S AUTO ONLY: AGG $ Automobile Liability INSR ADDL POLICY EFFECTIVE POLICY EXPIRATION LTR INSRD POLICY NUMBER DATE IMMIDDIYY) DATE)MMIODE/Y) A Excess/Umbrella Liability INSR ADDS. POLICY EFFECTIVE POLICY EXPIRATION LIR INSRD POLICY NUMBER DATE(MMIDD/YY) DATE(MMIDDIYY) LIMITS A t Other Liability WSR POLICY EFFECTIVE POLICY EXPIRATION LTR POLICY NUMBER DATE(MMIDDIYY) DATE IMMIDDIYY) LIMITS ACORD 101 (2008/01) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD