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HomeMy WebLinkAboutRES.1416.11-16-1998BILL NO. 98-229 RESOLUTION NO. JJU A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE WITH CYBERTEL RSA CELLULAR, L. P., TO ERECT A COMMUNICATIONS TOWER STRUCTURE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute a Lease with Cybertel RSA Cellular, L.P., to erect a communications tower structure. A copy of said Lease is attached to this Resolution and made a part hereof. PASSED AND ADOPTED THIS DAY OF f��myuUjO , 19. 01 A�� A. Spradling, III, M ATTEST: Ji 4b ('�_/I/) Gayl L. Conrad Deputy City Clerk Cape Girardeau North LEASE THIS LEASE ("Lease") entered into as of the _ day of , 1998, by and between THE CITY OF CAPE GIRARDEAU, MISSOURI, a municipal corporation organized under the laws of the State of Missouri, hereinafter referred to as Landlord, and CYBERTEL RSA CELLULAR, L.P., a Delaware limited partnership, hereinafter referred to as Tenant, WITNESSETH: ARTICLE I PREMISES AND TERM 1.1 Landlord is the owner of a tract of land situated in the County of Cape Girardeau, Missouri and being more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Tract"). Landlord, in consideration of the rent hereinafter reserved and agreed to be paid and the stipulations, agreements, covenants and conditions hereinafter set forth, hereby leases and demises to Tenant that portion of the Tract more particularly described as follows: A parcel of land more particularly described on Exhibit B attached hereto and incorporated herein by reference, together with any and all appurtenances, tenements, hereditaments, accretions, rights, privileges, easements and immunities appertaining thereto; and together with an easement over the adjacent land of Landlord providing convenient and suitable 24 -hour -per -day, 365 -day -per -year roadway, ingress and egress access to the above-described parcel from a public road; and together with a utility easement satisfactory to Tenant from the parcel to the available source of utilities, which parcel and access easement are generally described on Exhibit B hereto and incorporated herein by reference. hereinafter referred to as the "Premises". At Tenant's request before or after the Commencement Date Landlord shall dedicate such utility easements to Tenant or to the provider of utility services as are necessary or convenient for the development of the Premises, and if such easements are dedicated to Tenant such easements shall be included in the "Premises" as defined herein. 1.2 TO HAVE AND TO HOLD the Premises, unto the said Tenant for the initial term of five (5) years, extended as provided herein, for any lawful purpose whatsoever. The term of this Lease shall commence on the Commencement Date (hereinafter defined) and shall expire, unless sooner terminated as hereinafter provided, at midnight on the date five (5) years thereafter; provided, however, that the term of this Lease shall automatically be extended for nine (9) consecutive additional terms of five (5) years each, on all the same terms and conditions as are stated herein provided that rent during each of the last five (5) consecutive additional extension terms shall be subject to renegotiation if either Tenant or Landlord gives notice requesting renegotiation of rent to the other party at least'one (1) year prior to the STLD01-668367V3 commencement of such additional extension term, and provided further that if Tenant shall give Landlord notice prior to expiration of the then current term of Tenant's election not to extend this Lease, upon the expiration of the then current term of this Lease, this Lease shall expire and terminate. Any reference in this Lease to the "term" hereof shall include the initial five (5) year term and any such additional extended terms. 1.3 Tenant shall have the absolute right at any time and from time to time during the term hereof to terminate this Lease and all obligations of Tenant hereunder upon thirty (30) days written notice in the event that (1) the Federal Communications Commission, or any other local, state or federal governmental agency, shall cancel or refuse to renew or issue any necessary licenses, permits or approval necessary to utilize the transmitters or other equipment to be installed and located on or within the Premises; or (2) a building or other structure is constructed or some other event occurs which obstructs or interferes with the radio communication paths to or from antenna, transmitters or other equipment installed by Tenant on or within the Premises. 1.4 The rights and obligations of Tenant under this Lease are contingent upon Tenant obtaining all necessary approvals from the FAA, the FCC, Cape Girardeau County, or any other governmental authority having jurisdiction over the Premises, to erect a communication tower structure, communication gear, a related equipment service building, fencing, emergency power generator, above ground fuel storage tank, air conditioning equipment, antenna, transmitters, receivers, microwave dishes and related facilities and equipment, subject only to such terms and conditions as may be acceptable to Tenant in its sole discretion. The rights and obligations of Tenant under this Lease are further contingent upon Tenant receiving: (1) a utility easement from the available source of utilities to the parcel to be used as a cell site, which easement Tenant, at its sole discretion, deems satisfactory; (2) a nondisturbance agreement in recordable form and in substance acceptable to Tenant from the holder of any mortgage upon the Tract providing on behalf of such holder and its successors that so long as Tenant shall comply with its obligations hereunder the rights and estate of Tenant hereunder shall not be disturbed and that, in the event of foreclosure or deed in lieu thereof, such holder or its successors shall be bound as the Landlord hereunder directly to Tenant; and (3) at Tenant's expense, site condition, topographic, engineering, soils, surveys, environmental, title and other reports on or concerning the Premises to determine its desirability and suitability for Tenant's intended use of the Premises, such reports and other matters to be acceptable to Tenant in its sole discretion. Tenant shall have six (6) months after the date of execution of this Lease by both parties to give Landlord written notice of satisfaction or waiver of such contingencies, and the date, not to exceed 30 days after the expiration of the aforesaid contingency period (regardless of when such contingencies shall have been waived or satisfied), on which the term of this Lease shall commence (the "Commencement Date"); provided that in the event final action has not been taken within said six (6) month contingency satisfaction period on any pending application for any permit or approval deemed necessary by Tenant said contingency satisfaction period provided for in this paragraph shall be extended for such additional length of time as shall be reasonably necessary to obtain such final action. In the event Tenant shall fail to give notice to the Landlord of the satisfaction or waiver of such contingencies within the aforesaid contingency satisfaction period or in the event that Tenant shall at any time during said contingency satisfaction period give written notice to Landlord of cancellation of this Lease due to failure of any of said contingencies, this Lease shall become null and void, and of no further STLD01-668367 V3 force or effect, and neither Landlord nor Tenant shall have any further liability hereunder. The contingencies stated herein are for the benefit of Tenant, and Tenant may, in its sole discretion, elect to waive any such contingency by written notice thereof given to Landlord. ARTICLE II WARRANTY OF TITLE, QUIET ENJOYMENT AND 2.1 Landlord represents and warrants to and covenants with the Tenant that Landlord is seised of a good and indefeasible merchantable title in fee simple to the Premises, free and clear of all liens, encumbrances, conditions or restrictions of title other than those which do not interfere with Tenant's use and operation of the Premises for the construction, operation and location of a communication tower structure, communication gear, a related equipment service building, air-conditioning units, emergency power generator, above ground fuel storage tank, antenna, transmitters, receivers, microwave dishes and related facilities and equipment; and that Landlord has the full power, right and authority to execute this Lease. Landlord shall execute the standard form of title company affidavit in order to enable Tenant to obtain title insurance on the Premises free and clear of any exceptions other than those which have been disclosed in writing to. Tenant and which do not interfere with Tenant's use of the Premises. Landlord also represents and warrants that there are no subsurface or underground utility lines or facilities or other obstructions located on the Premises, except as disclosed to Tenant by Landlord in writing. The persons signing this Lease on behalf of Landlord by their execution hereof certify and stipulate that all necessary requirements have been followed and complied with to authorize and empower them to execute this Lease on behalf of Landlord and that this Lease is a binding obligation of Landlord enforceable in accordance with its terms. 2.2 Landlord covenants that the Tenant, upon paring the rental hereunder specified and provided, and duly performing and observing the several covenants in this Lease agreed to be performed by the Tenant, shall have peaceable possession and quiet enjoyment of the Premises during the entire term hereof. Landlord shall pay as and when due all taxes, assessments, liens, encumbrances, levies and other charges against the Tract, and in the event Landlord shall fail to do so, Tenant may, but shall not be obligated to, pay same and offset or deduct from the rent payable the full amount thereof, together with Tenant's reasonable costs incurred in connection therewith, or demand reimbursement from Landlord of all or any part of same as may be outstanding after any said offset or deduction, which reimbursement shall be due and payable on demand; provided, however, Tenant shall pay any increase in real estate taxes on the Premises resulting from improvements made by Tenant on the Premises. At Tenant's request Landlord shall consent to, cooperate with and assist Tenant in creating a separate tax parcel for the Premises in order to obtain a separate real estate tax bill for the Premises to be mailed to Tenant, and at such time as a separate real estate tax parcel is created for the Premises for mailing to Tenant, Tenant shall thereupon become obligated to pay such separate real estate tax bill on the Premises. 2.3 Landlord represents and warrants to Tenant that there is no mortgage, lien, or other encumbrance affecting -the Tract which requires the consent to this Lease of any party which has not been obtained. Landlord shall obtain a nondisturbance agreement in recordable STLDOI-668367V3 form and in substance acceptable to Tenant from the holder of any mortgage upon the Tract providing on behalf of such holder and its successors that so long as Tenant shall comply with its obligations hereunder the rights and estate of Tenant hereunder shall not be disturbed and that, in the event of foreclosure or deed in lieu thereof, such holder or its successors shall be bound as the Landlord hereunder directly to Tenant. 2.4 Landlord covenants that under the laws of the city and county in which the Premises is located that the Premises may lawfully be used for the purposes intended by Tenant. Landlord shall assist Tenant in obtaining such zoning, building and other permits as may be required under applicable laws, ordinances and regulations to permit Tenant to use the Premises for the purposes intended. 2.5 Landlord shall provide Tenant with a plan, if available, of the Tract and Premises accurately showing the location of all existing easements, active or abandoned utilities, and underground structures including old foundations, wells, cisterns, etc.; if such a plan is not available then Landlord shall locate the existence of any of the foregoing on a site plan to be provided by Tenant. Each utility, easement, or structure shall be located on the plan by dimensions to the site property lines, property corners or adjacent structures. Landlord shall be solely responsible for the cost of repairing, removing, abandoning, and relocating any utilities or structures which are not shown on the plan or which are incorrectly shown and which are encountered on the site by the Tenant during the site investigative work or construction. Should uncharted or incorrectly charted utilities or underground structures be encountered by the Tenant, the Landlord shall be contacted immediately. Landlord shall cooperate with Tenant and utility owners in repairing, removing, relocating, or abandoning the utility or subsurface structure encountered. 2.6 Landlord represents and warrants to Tenant that to the best of its knowledge on the Commencement Date (i) the Premises shall be free of all underground storage tanks, asbestos, petroleum. products, lead-based paint, hazardous waste, hazardous substances and toxic substances, as defined under all applicable federal, state and local environmental laws including, but not limited to, hazardous waste as defined in the Resource Conservation and Recovery Act of 1976 as amended ("RCRA"), hazardous substances as defined in the Comprehensive Environmental Response Compensation and Liability Act as amended ("CERCLA") and toxic substances as defined in the Toxic Substances Control Act as amended ("TSCA"), and all regulations under any of the foregoing; (ii) any operations at the Premises shall not be in violation of any laws, regulations, ordinances, statutes, orders or decrees of any governmental body, arbitration tribunal or court, including, without limitation, RCRA, CERCLA, TSCA and all regulations thereunder (collectively hereinafter "Environmental Laws"); (iii) there shall be no proceedings pending or threatened in which the operation or conduct of the business on the Premises is alleged to constitute a violation of Environmental Laws or any other laws, regulations, ordinances, statutes, order or decrees of any governmental body, arbitration tribunal or court; and (iv) there shall be no outstanding judgments, decrees or orders affecting the Premises or the operation or conduct of business on the Premises. Tenant covenants that any Tenant activities that affect the Premises after the Commencement Date shall be conducted in full compliance with applicable Environmental Laws. STLDO I -668367V3 2.7 Landlord agrees to defend and indemnify Tenant, its successors and assigns against and hold them harmless from (i) any and all liabilities, obligations, losses, damages and deficiencies resulting from or arising out of any inaccurate representation or breach or nonfulfillment of any warranty made by Landlord in this Lease or pursuant hereto or from any breach or default in the performance or fulfillment by Landlord of any of the covenants and agreements which it is to perform or fulfill hereunder; (ii) any and all claims, damages or liabilities, including reasonable environmental investigation, clean-up and monitoring costs relating to the conduct of the business on the Premises prior to the date of this Lease and any Landlord activities that affect the Premises after the date of this Lease -'and (iii) any and all costs and expenses, including, but not limited to, reasonable legal and accounting fees, reasonable expert witness fees and reasonable consulting fees, related to the foregoing. This indemnification shall survive the termination of this Lease. ARTICLE III RENTAL 3.1 Tenant covenants and agrees to pay to Landlord, as and for the rental for the Premises during the entire term hereof (including extended terms), an annual rent of Eight Thousand and 00/100 Dollars ($8,000.00) per year, payable in advance commencing on the Commencement Date and continuing on the same day of each year thereafter during the term hereof (including additional extended terms). Rent for any partial year during the term hereof shall be payable on an adjusted basis, with the annual rent being prorated for the number of days in such partial year on the basis of 365 days to the year. Landlord's Taxpayer Identification Number is: 43-6000593. 3.2 Beginning on the fifth anniversary of the Commencement Date and continuing on each successive fifth anniversary of the Commencement Date during the remainder of the term (including additional extended terms) of this Lease, the annual rent payable shall be adjusted as follows: ANNIVERSARY OF COMMENCEMENT DATE Tiff Tenth Fifteenth Twentieth Twenty-fifth Thirtieth Thirty-fifth Fortieth Forty-fifth ADJUSTED RENT $10,580.00 $12,167.00 $13,992.05 $16,090.86* $18,504.49* $21,280.16* $24,472.18* $28,143.01 * * Subject to renegotiation if notice is given as provided in paragraph 1.2. STLDO I -668367V3 3.3 Upon completion of the tower to be constructed by Tenant on the Premises, Landlord and Tenant shall enter into a License Agreement in the form attached hereto as Exhibit C ("License Agreement"), pursuant to which Tenant shall license Landlord to locate equipment approved by Tenant, in its sole discretion, on Tenant's tower during the term of this Lease. ARTICLE IV IMPROVEMENTS - UTILITIES 4.1 Tenant may use the Premises as the site or location for the erection, use, maintenance, repair, improvement or replacement of one communication tower structure, communication gear, related equipment service building, generator, and air conditioning unit, emergency power generator, above ground fuel storage tank, antenna, transmitters, receivers, microwave dishes and related facilities and equipment including supports, foundations, buttresses, anchors and other appurtenances, and the right to install, use, maintain, replace, or remove on the Tract or the easement area lines for power or telephone circuits above ground or below ground with necessary supports or appurtenances therefor. Landlord agrees to provide Tenant with 24 hour -a -day access to the Premises each day of the year. Tenant shall construct an eight -foot -high chain link fence around the Premises (exclusive of access and easement areas). Tenant shall replace the existing nine -foot high chain link fence with a new eight -foot chain link fence to match the fence around the Premises. Said fence shall include a new sixteen -foot wide gate at the location of the existing drive. Tenant may enter upon the Premises and adjacent lands of Landlord from and after the date of execution of this Lease by Landlord for the purpose of making surveys and conducting soils, engineering and other tests and may cut or trim the trees on the Premises or any adjacent land of Landlord (with Landlord approval) in connection therewith. Tenant shall pay to the Landlord all damages and expenses caused to any and all of Landlord's property caused by such preliminary entry on the Premises. Tenant shall have the right to clear and thereafter to keep the Premises, the right of way and any utility easement areas clear of trees, bushes, rocks and crops and to install temporary anchors and guys upon, and otherwise temporarily to use and occupy, any adjacent lands of Landlord in connection with the construction or maintenance of the communication tower structure on the Premises. If the construction, operation or maintenance of the radio tower or monopole structure results in damage to any adjacent lands or buildings of Landlord, Tenant shall pay Landlord for such damage. 4.2 Tenant shall have the right during the term of this Lease, to construct, remove or demolish any and all improvements on the Premises (with the exception of the outside perimeter chain link fence enclosing water tank site), whether or not such improvements were constructed by Tenant, which improvements shall be constructed, removed or demolished in a good and workmanlike manner and in accordance with applicable requirements of laws, statutes, ordinances and regulations of governmental authorities having jurisdiction with respect to the Premises. Landlord shall cooperate fully with Tenant, and to the extent required by any applicable laws, statutes, ordinances, or regulations applicable to the Premises, Tenant may apply for permits or other authorizations in the name of Landlord for construction, removal or demolition of any improvements, provided that Tenant shall pay all costs and expenses involved therein and shall hold Landlord harmless from any such costs or expenses. STLD01-668367V3 4.2. 1. Tenant agrees that the communications tower, to be constructed by Tenant on the Premises, shall be a free-standing, lattice tower and that the c.xterior of any equipment shelter or building located on the Premises shall be of a 'Take -brick` appearance. In the event that lighting of the tower is required, Tenant shall utilize a daytime white strobe light and a night time red beacon light. 4.2.2 Tenant agrees to provide electrical power to the City's water level monitoring system that requires a 3 amp 110 volt electric service. Said service shall be run underground from Tenant's electrical service panel to an existing vault. 4.2.3. Tenant agrees to provide electrical service to the dusk to dawn security light located on the Tract and to be responsible for the cost of electricity for such security light. 4.2.4 Tenant agrees to install an emergency electrical power generator to provide power for the Tenant's communications equipment and the Landlord's water level monitoring system. 4.2.5 Tenant agrees to not display any advertisement, campaign sign, logo or advertising sign of any type on the communication tower or on the Premises. 4.3 Except for maintenance, repair and improvement of the access easement area, which shall be the responsibility of Landlord, Tenant, at its ow -n cost and expense, shall maintain the Premises and improvements (unless removed or demoEshed) hereafter situated thereon in good condition and repair. 4.4 Except for maintenance, repair and improvement of the access easement area, which shall be the responsibility of Landlord, Landlord shall Faave no responsibility to effect any repairs or replacements in connection with the Premises. 4.5 All buildings, fixtures, towers, improvement-- and equipment now or hereafter erected, located, placed or constructed by Tenant or its as�5;igns upon the Premises shall be and remain the property of Tenant or its assigns regardless of the manner or mode of attachment and may be removed by Tenant or its assigns at any times during the term of this Lease, or within 90 days thereafter. 4.6 Tenant shall be responsible for all costs of uta"lities services consumed or furnished in connection with Tenant's use and occupancy of the Pre= -Wises. 4.7 Landlord, its successors and assigns, shall nor, use, allow, or permit the Tract or any of its other adjacent property to be used in any manner which will materially impair the use of the communication tower structure, communication gear. antennae, transmitters, receivers, microwave dishes, equipment and facilities hereafter erected or located upon the Premises by Tenant or allow any use in any'way as shall cause any Sestructive or conflicting interference with the radio, telephone, or communications signal to and from the facilities of Tenant. Landlord hereby agrees that Tenant has the exclusive right :.o use the Tract to provide STLDO 1-668367V3 telecommunications or other communications services and Landlord shall not use or permit the use of the Tract by any other person or entity for similar or commercially competing purposes. ARTICLE V COMPLIANCE WITH LAWS; INDEMNITY 5.1 Tenant covenants that it will comply with all FCC, FAA or related laws, statutes, or regulations relating to Tenant's use or occupancy of the Premises or to the making of repairs or alterations thereto, and will indemnify and hold Landlord harmless from any liability or expense as owner of the Premises with respect thereto including ,all reasonable costs, including reasonable attorney's fees, that Landlord may have or incur in connection therewith. 5.2 Tenant hereby assumes all risk of personal injury or death and property damage or loss from whatever causes arising while any person approaches, enter, uses or leaves the aforementioned Premises, which may occur directly or indirectly from the operation of Tenant under this Lease, excepting any of same arising from breach by Landlord of its obligations hereunder or from the negligence or intentional misconduct of Landlord or its agents or employees. 5.3 Tenant hereby releases Landlord, its officers, employees, agents, servants and assigns from any liability which might occur from the operations of Tenant under this Lee, as excepting any of same arising from breach by Landlord of its obligations hereunder or from the negligence or intentional misconduct of Landlord or its agents or employees. 5.4 Tenant shall indemnify and hold harmless Landlord, its officers, employees, agents and servants from all suits and actions of every name and description brought against Landlord, its officers, employees, agents and servants for or on account of any injuries or damages received or sustained by any parties or alleged to be recei-red or sustained by any parties or party which may result directly or indirectly from the operations of Tenant under this Lease, excepting any of same arising from breach by Landlord of its obligations hereunder or from the negligence or intentional misconduct of Landlord or its agents or employees. 5.5 Tenant shall keep its improvements which are placed on the Premises in a state of good repair and will cooperate with Landlord by making repairs as necessary so as to protect the health and safety of the public. 5.6 Landlord and Tenant hereby release and wai-sve any and all. rights of recovery, including any insurer's subrogation rights, against the otl:Aer and against the owners, officers, directors, shareholders, employees, agents and representatives of the other, for loss of or damage to the party granting this release and waiver or its property or the property of others under its control or death or injury to persons to the extent of the it surance coverage maintained with respect to such loss or damage, death or injury. STLD0I-668367V3 ARTICLE VI SUBLEASING - ASSIGNMENT 6.1 Tenant may not assign this Lease or sublet the Premises or any part thereof without the consent of Landlord (which consent shall not be unreasonably withheld), except that no consent shall be required for an assignment, sublease or other transfer to a parent, subsidiary or affiliated entity of Tenant, or to an entity controlled by Tenant, under common control with Tenant, or controlling Tenant, and in addition Tenant may assign this Lease or sublet the Premises without the consent of Landlord in connection with a sale, transfer or financing of all or a substantial part of Tenant's cellular telephone business in the cellular telephone RSA service area designated by the FCC within which the Premises is located, provided that such assignee, sublessee or transferee shall continue to use the Premises only for the purposes permitted hereunder. ARTICLE VII DEFAULT 7.1 If Tenant shall default in the payment of rent reserved or breach any other covenant or agreement of this Lease; Landlord shall give notice of such default or breach to Tenant, and if Tenant shall fail to cure any such default or breach within thirty (30) days after such notice (or if such default or breach cannot be cured within the thirty (30) day notice period, then if Tenant shall fail to commence action to cure the default or breach within the thirty (30) day notice period or fail to commence and fail to prosecute such action diligently), then, in any such event, the Landlord may terminate this Lease and repossess the Premises in accordance with all applicable legal requirements. ARTICLE VIII REMEDIES 8.1 All of the remedies provided for herein are cumulative and given without impairing any of the rights or remedies of Landlord. 8.2 The failure of either party to insist upon a strict performance of any of the terms, conditions and covenants herein, shall not be deemed a waiver of any rights or remedies that it may have, and shall not be deemed a waiver of any subsequent breach or default in the terms, conditions and covenants herein contained. STLD01-668367V3 ARTICLE IX NOTICE 9.1 All notices required under the terms of this Lease shall be made in writing and personally delivered or deposited in the U.S. mails, as registered or certified matter, to the following address, return receipt requested: (a) in the case of Tenant to: CyberTel RSA Cellular, L.P. c/o Ameritech Cellular 500 Maryville University Drive, Suite 250 St. Louis, Missouri 63141 Attention: Manager of Real Estate and Construction with a copy to: Craig S. Biesterfeld Blackwell Sanders Peper Martin LLP 720 Olive Strdet, 24th Floor St. Louis, Missouri 63101 (b) in the case of Landlord to: City of Cape Girardeau 401 Independence Street Cape Girardeau, Missouri 63703 Attention: Public Works Director or to such other address of which Tenant or Landlord shall give written notice to the other as provided in this Section 9.1. 9.2 Any such notice, unless otherwise provided herein, shall be deemed to be given on the date same is personally delivered or deposited in the United States mail, as registered or certified matter, postage prepaid. ARTICLE X MISCELLANEOUS 10.1 All of the terms and conditions of this Lease shall bind and shall inure to the benefit of the parties hereto, their respective heirs, legal representatives, successors and assigns, unless otherwise specifically provided herein. 10 STLDO l -668367V3 10.2 This Lease sets forth the entire integrated understanding and agreement of the parties and supersedes any prior discussions, negotiations, agreements or understandings of the parties. This Lease may be modified, amended or surrendered only by an instrument in writing duly executed by the Landlord and Tenant. 10.3 The titles of the Articles of this Lease are for convenience only and shall not be considered as part of the Lease for purposes of construction of the terms and conditions hereof. 10.4 Promptly on request of Tenant, Landlord shall from time to time execute estoppel certificates stating that this Lease is then in full force and effect, that rent has been paid through the date of the certificate and the Landlord knows of no default by Tenant hereunder, or if any of such facts are not true, then stating specifically in what respect they are not true. 10.5 This Lease shall not be recorded, but the parties shall execute in recordable form, and record at the Tenant's expense, a short form lease for recording purposes setting forth the description of the Premises, the term of this Lease, and the provisions of Paragraph 4.7 hereof. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first above written. Attest: Gayle L. Con-ract, eputy rty er Approved as to form and legal sufficiency: ric unnmgam, xty ttorney STLD01-668367V3 Landlord: CITY OF CAPE GIRARDEAU, MISSOURI Michael Miller, ity anager Tenant: CYBERTEL RSA CELLULAR, L.P. By: CYBERTEL CELLULAR MANAGEMENT COMPANY Title: STATE OF MISSOURI ) ) SS. COUNTY OF ST. LOUIS ) On this day of , 1998, before me personally appeared to me personally known, who, being by me duly sworn, did say that he is the of CyberTel Cellular Management Company, a Delaware corporation, a general partner of CyberTel RSA Cellular, L.P., a Delaware limited partnership and that the foregoing instrument was signed in behalf of said limited partnership, and said kn said limited partnership. ac owledged said instrument to be the free act and deed of IN TESTIMONY WHEREOF, I have hereunto set my hand :and affixed my official seal in the County and State aforesaid, the day and year first above written. My term expires: Votary Public STATE OF MISSOURI ) ) SS COUNTY OF CAPE GIRARDEAU ) On this day of , 1998, before me appeared Michael G. Miller, Gayle L. Conrad, and W. Eric Cunning a -m to me personally known, who, being by me duly sworn, did say that they are the City Manager, Deputy City Clerk and City Atto_-ney of The City of Cape Girardeau, a municipal corporation of the State of Missouri, and that the seal affixed to the foregoing instrument is the corporate seal of said municipal corporation, and that said instrument was signed and sealed in behalf of said municipal corporation, by au`hority of its City Council and Resolution No. and that said instrument is the free act and deed of said municipal corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first above written. My term expires: 12 STLD01-668367V3 otary a is EXHIBIT A Description of Tract All that part of U.S.P. Survey Number 2198, Township 31 North, Range 13 East, described as follows: Start at the northeast corner of the southeast quarter of Section 23, Township 31 North, Range 13 East, said corner being on the west line of said Survey 2198, thence north with the west line of Survey 2198, 20.30 chains to a stone for a corner from which a 15 inch black oak bears N 801 W, 19 links: thence S 88°30' E, 556.3 feet for the point of beginning; thence continue S 88°30' E, 788.7 feet to a stone for a corner at the northeast corner of the tract conveyed to Ralph A. Koerber by Warranty Deed recorded in Book 177 at Page 46; thence S 1030' W, 50.0 feet; thence N 88°30'W, 580.0 feet; thence S 1030' W, 60.0 feet; thence N 88030' W, 208:7 feet; thence N 1'30' E, 110.0 feet to the point of beginning, containing 1.19 acres, more or less. All that part of U.S.P. Survey No. 2198, Township 31 North, Range 13 East, described as follows: Start at the northeast corner of the southeast quarter of Section 23, Township 31 North, Range 13 East, said corner being on the west line of said Survey 2198; thence north with the west line of Survey 2198, 20.30 chains to a stone for a corner from which a 15 -inch black oak bears N 801 W, 10 links; thence S 88°30' E, 556.3 feet for the point of beginning; thence N 1030' E, 50.0 feet; thence S 88°30' E, 208.7 feet; thence S 1°30' W. 50.0 feet; thence N 88°30' W, 208.7 feet to the point of beginning, containing 0.24 acres, more or less. 13 STLD01 -668367V3 HSM INC •N^s —a &64iWU MI!M,on ppS ••' •—• ! 11 i ecslzi �7M�TTa IJLVCI oul alS*a •L.L uu=lq� i;ifll�t 111111 o.o. gSpjba.0o,ol llly�E :c; 111111 II�III ?—L ---S .0991 3 K.1 N $ I� EXHIBIT C LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of the day of , 1998, by and between CyberTel RSA Cellular, L.P., a Missouri partnership ("Licensor"), and the City of Cape Girardeau, Missouri, a municipal corporation organized under the laws of the State of Missouri ("Licensee"). 1. License. Licensor hereby licenses Licensee to install, operate and maintain at Licensee's expense and risk the equipment set forth on Exhibit A attached hereto ("Improvements") on a tower (the "Tower") constructed by Licensor on property leased to Licensor pursuant to that certain Lease made between Licensor and Licensee dated as of ("Lease"), which property is located in Cape Girardeau County, Missouri ("Premises"), such Improvements to be located and operated at the height, location, frequencies and orientation shown on Exhibit A. 2. Term. Unless sooner terminated as provided herein, the term, of this Agreement shall begin on the date hereof and shall continue for so long as the Lease shall remain in effect and shall terminate automatically upon expiration or termination of the Lease; provided that Licensee shall have the right to terminate this License upon thirty (30) days notice. Licensee shall remove all of the Improvements on the Premises prior to expiration or termination of this Agreement and in the event Licensee shall fail to do so Licensor may disconnect and remove the Improvements at Licensee's sole risk, cost and expense. Any holding over after the expiration or termination of the term shall not be permitted hereunder nor construed as a month to month tenancy but during any such holdover Licensee shall nonetheless be bound to all the obligations stated hereunder and in addition to all other rights and remedies hereunder the Licensor shall be entitled, for each month or portion thereof during which such holdover shall continue, to an amount equal to double the fair value of the rights granted Licensee hereunder to install, operate and maintain the Improvements. 3. Installation, Maintenance & Repairs. Licensee shall'be responsible for obtaining or amending all necessary FCC or other licenses required to operate its Improvements and for maintaining and repairing its Improvements and shall be responsible for paying the costs for labor, materials, and supplies which are expended as a result of such repair and maintenance to the Improvements, and shall not allow any mechanic's or materialmen's liens to attach to the Tower or the Premises. Prior to the installation of or any repair or maintenance to the Improvements, Licensee shall notify Licensor. At Licensor's option, a representative of the Licensor shall be present to oversee any installation, repair, maintenance or other construction on the Tower. Licensee agrees that it shall repair any damage to the Tower or the Premises caused by installation, repair, maintenance or removal of the Improvements. 4. Indemnification and Insurance. Licensee hereby agrees to indemnify and hold Licensor harmless from any claim, including attorneys' fees, including, but not limited to injuries to or death of persons or damage to property which may arise during the term of this Agreement, during any hold over period, or during the removal of the Improvements upon termination of this Agreement, against Licensor or its landlord by reason of any act, omission or occurrence by Licensee, its agents, officers, employees or permittees arising out of this Agreement. Licensee hereby agrees to procure and maintain adequate insurance covering the liability to which Licensor and/or Licensee is or may be subjected to by the terms of this Agreement and to provide written proof of such insurance from time to time upon the reasonable request of the Licensor. The amount of said insurance showing the Licensor as the named insured shall be no less than one million dollars ($1,000,000) for each person injured, one million dollars ($1,000,000) for any one accident, and one million dollars ($1,000,000) for property damage. 15 STLD01-668367V3 5. Interference. If Licensee's Improvements in any way interfere with the operation of Licensor's equipment, Licensee shall immediately cease and desist all operation of the Improvements. Licensee shall not resume operation of the Improvements until Licensor shall have received a written report, at Licensee's expense, from an engineer acceptable to Licensor setting forth the measures required to eliminate such interference and Licensor is satisfied that the interference will not recur. If Licensee cannot or will not eliminate such interference then this Agreement shall immediately terminate and Licensee shall remove the Improvements within thirty (30) days of termination. If Licensee fails to immediately cease and desist from its operation of the Improvements, then Licensor may disconnect the Improvements at Licensee's sole risk, cost and expense. 6. Additional Costs, All costs of maintenance, repair, operation (including utilities), insurance and taxes for the Improvements, shall be at the sole cost, expense and responsibility of Licensee, and Licensee shall reimburse Licensor for any costs incurred by Licensor for any such items. 7. Utilities. Licensor agrees to permit Licensee to connect to, consume and utilize Licensor's existing supply of electrical service at the Premises, in accordance with plans and specifications approved by Licensor. Licensee shall reimburse Licensor each month, within 15 days of Licensor's request therefor, for the cost of electricity consumed by Licensee, based on Licensor's reasonable calculation of such costs. All electrical connections shall be performed by a licensed electrician approved by Licensor, and all costs associated therewith shall be the sole responsibility of Licensee, and Licensee shall promptly reimburse Licensor for any and all costs incurred by Licensor in connection therewith. Licensor shall have no liability of any kind or nature to Licensee or others for any cessation of, interruptions in or failure of electrical service (including emergency power) to the Premises or Licensee's Improvements all of which are hereby disclaimed by Licensor and waived and relinquished by Licensee. 8, Permits. Licensee, at its sole cost and expense, shall be responsible for obtaining all permits, licenses or other approvals by any regulatory body having jurisdiction over the installation, operation or maintenance of the Improvements. Licensee shall provide copies of such permits, licenses or other approvals to Licensor from time to time upon the reasonable request of Licensor. 9. Compliance. Licensee will install, operate and maintain the Improvements in compliance with all applicable laws and regulations and in accordance with all requirements imposed by the Lease. If Licensee fails to comply with such laws, regulations or Lease within a reasonable period of time, not to exceed thirty (30) days, then Licensor may immediately terminate this Agreement and Licensee shall thereupon remove the Improvements. 10. Additional Equipment. No additional equipment upon or attachments to the Premises shall be made by the Licensee without written approval of the Licensor, in its sole discretion. Such additional equipment, if so approved, shall be deemed to be a part of the Improvements. 11. Assignment. This License is personal to Licensee, and Licensee not assign its interest in this Agreement. Any assignment of this License shall be void and shall terminate this License. 12. Liens. Licensee shall not permit any liens to be attached to the Improvements or Premises. 13. Default. Except as otherwise provided herein, if (i) Licensee shall default in or breach any covenant or agreement of this Agreement, or (ii) proceedings shall be commenced by or against the cl Licensee for protection under any bankruptcy, insolvency or other similar statute, Licensor may terminate 16 STLD01-668367V3 this Agreement immediately and Licensee shall thereupon remove the Improvements. Upon any termination of this Agreement Licensor may disconnect and remove the Improvements if Licensee shall have failed to do so. 14. Notices. All notices required under the terms of this Agreement shall be made in writing and personally delivered or deposited in the United States mails, as registered or certified matter, return receipt requested, postage prepaid to the following address: (a) in the case of Licensor to: CyberTel RSA Cellular, L.P. 500 Maryville University Drive, Suite 250 St. Louis, Missouri 63141 Attention: Manager of Real Estate and Construction with a copy to: Craig S. Biesterfeld Blackwell Sanders Peper Martin LLP 720 Olive Street, 24th Floor St. Louis, Missouri 63101 (b) in the case of Licensee to: City of Cape Girardeau 401 Independence Street Cape Girardeau, Missouri 63703 Attention: Public Works Director or to such other address of which Licensor or Licensee shall give written notice to the other as provided herein. Any such notice, unless otherwise provided herein, shall be deemed to be given on the date the same is personally delivered or deposited in the United States mail, as registered or certified matter, postage prepaid. 15. Access. Licensor will provide Licensee reasonable access to the Premises consistent with Licensor's security measures. 16. Miscellaneous. (a) All of the terms and conditions of this Agreement shall bind and shall inure to the benefit of the parties hereto, their respective heirs, legal representatives, successors and assigns, unless otherwise specifically provided herein. (b) This Agreement sets forth the entire integrated understanding and agreement of the parties and supersedes any prior discussions, negotiations, agreements or understandings of the parties. This Agreement may be modified or amended only by an instrument in writing duly executed by the Licensor and Licensee. 17' STLD01-668367V3 (c) The titles contained herein are for convenience only and shall not be considered as part of the Agreement for purposes of construction of the terms and conditions hereof. (d) The waiver by Licensor of a breach or default of or under any provision of this Agreement shall not be deemed a waiver of any subsequent breach or waiver of any kind or nature. (e) This Agreement shall be governed and construed in accordance with the laws of the State of Missouri. IN WITNESS WHEREOF, Licensor and Licensee have executed this Agreement as of the day and year first above written. Attest: Gayle L. Conrad, Deputy City Clerk Approved as to form and legal sufficiency: By: W. Eric Cunningham, City Attorney STLDO l -668367 V3 Licensor: CYBERTEL RSA CELLULAR, L.P. By: CYBERTEL CELLULAR MANAGEMENT COMPANY By: Title: Licensee: CITY OF CAPE GIRARDEAU, MISSOURI By: Title: U., Michael G. 'Miller, City Manager it STLD01-668367V3 EXHIBIT A Antenna Lines and Equipment ("Improvements")