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2014-17
RESOLUTION NO. 2014 - 17 COUNCIL MEMBER STEWART INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS, the City of Blair, Nebraska has been presented with a Tower and Lease Agreement between the City of Blair, as Grantor and Alltel Communications of Nebraska, Inc. d/b /a Verizon Wireless, as Grantee. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF BLAIR, NEBRASKA, that the Tower and Lease Agreement which is attached hereto, marked Exhibit "A" and by this reference made a part hereof as though fully set forth herein is hereby approved by the City of Blair, Nebraska. BE IT FURTHER RESOLVED THAT THE MAYOR AND CITY CLERK OF THE CITY OF BLAIR, NEBRASKA, is hereby authorized to execute and deliver said Tower and Lease Agreement on behalf of the City of Blair, Nebraska. COUNCIL MEMBER STEWART MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER SHEPARD. UPON ROLL CALL, COUNCIL MEMBERS VOTING "AYE" SHEPARD, STEWART, RYAN, KEPHART, ANDERSEN, JENSEN, CHRISTIANSEN AND HALL. COUNCIL MEMBERS NONE VOTING "NAY ". THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 13 DAY OF MAY, 2014. CITY OF BLAIR, NEBRASKA BY JA E ALPH, MAYO ATTEST: � A BRENDA R. WHEELER, CITY CLERK (SEAL) -1- STATE OF NEBRASKA ) ) :ss: WASHINGTON COUNTY ) BRENDA R. WHEELER, hereby certifies that she is the duly appointed, qualified and acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and adopted at a regular meeting of the Mayor and City Council of said City, held on the 13th day of May, 2014. !F y BRENDA R. WHEELER, CITY CLERK -2- SITE NAME: NE05 NO SCHOOL SITE NUMBER: ATTY /DATE: GJ TOWER CONSTRUCTION AND LEASE AGREEMENT This Agreement, made this day of J v 2014, between The City of Blair, Nebraska, a Nebraska Municipal Corporation with a mailing address of 218 South 16 Street, Blair, Nebraska, 68008, hereinafter designated LESSOR, and Alltel Communications of Nebraska, Inc. d/b /a Verizon Wireless, with its principal offices located at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 (telephone number 866 - 862 - 4404), hereinafter designated LESSEE. The LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties" or individually as the "Party ". In consideration of the mutual covenants contained herein and intending to be legally bound hereby, the Parties hereto agree as follows: 1. PREMISES LESSOR hereby leases to the LESSEE a portion of that certain space (the "Tower Space ") on the LESSOR's tower (to be constructed by LESSEE as discussed herein), hereinafter referred to as the "Tower ", located at 3100 College Drive, Blair, Washington County, Nebraska as described in Book 80 of Deeds at Page 54 -55 as recorded in the Office of the Register of Deeds of Washington County, Nebraska (the entirety of LESSOR's property is referred to hereinafter as the "Property "), together with a 28' x 40' parcel of land (the "Land Space ") sufficient for the installation of LESSEE's equipment shelter; together with the non - exclusive right (the "Right of Way ") for ingress and egress, seven (7) days a week, twenty -four (24) hours a day, on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, fiber, poles, cables, conduits, and pipes over, under, or along a twenty foot (20') wide right -of -way extending from the nearest public right -of -way, College Drive, to the Land Space; and together with any further rights of way (the "Further Rights of Way ") over and through the Property between the Land Space and the Tower Space for the permitted installation and maintenance of utility wires, poles, cables, conduits, and pipes. The Tower Space, Land Space, Right of Way and Further Rights of Way are substantially described or depicted in Exhibit A, attached hereto and made a part hereof and are collectively referred to hereinafter as the "Premises ". In the event any public utility is unable to use the Right of Way or Further Rights of Way, the LESSOR hereby agrees to grant an additional right -of- way(s) either to the LESSEE or to the public utility at no cost to the LESSEE. LESSOR hereby grants permission to LESSEE to install, maintain and operate the telephone and radio communications equipment, antennas and appurtenances described in Exhibit B attached hereto. LESSEE reserves the right to replace the aforementioned equipment with similar and comparable equipment provided said replacement does not increase tower loading of the Tower and does not impede or disrupt service of LESSOR or other lessees utilizing the Tower. 2. TOWER REMOVAL AND CONSTRUCTION LESSEE agrees, at LESSEE's sole cost and expense, to remove and dispose of LESSOR's existing sixty foot (60') monopole tower ( "Existing Tower "), and to construct on a portion of the Property a new sixty foot (60') monopole communications Tower, with space for up to three (3) wireless carriers, including LESSEE "s antennas, as further identified on Exhibit B attached hereto. Prior to removal of the Existing Tower, LESSEE shall remove LESSOR's equipment and equipment of other lessees ( "Existing Equipment ") located on the Existing Tower and relocate the Existing Equipment to the newly constructed Tower. LESSEE agrees that any equipment of LESSOR or any other lessees located on the Existing Tower shall be relocated to the same elevation on the Tower and any aiming of equipment shall be done so as to provide the same angle of reception as on the Tower. LESSEE agrees to consult with LESSOR's consultant and any other lessees, or their representatives, to guarantee that the new installation shall be the same as currently exists. LESSEE agrees that the costs of removal and disposal of the Existing Pole and removal and relocation of the Existing Equipment shall be borne by LESSEE. LESSEE shall submit a full set of construction and engineering plans to LESSOR for approval prior to starting any construction on the Premises. LESSEE agrees to construct and install its equipment or antennas on the Tower in accordance with the plans and specifications identified on Exhibit B and as approved by LESSOR. It is understood and agreed that LESSEE's ability to construct the Tower and to use the Premises as provided herein is contingent upon LESSEE obtaining after the execution date of this Agreement all of the certificates, permits and other approvals that may be required by any Federal, State or Local authorities, as well as satisfactory soil boring tests and structural analysis which will permit LESSEE use of the Premises as set forth above. 3. TRANSER OF TITLE Within thirty (30) days following completion of construction of the Tower on LESSOR's Property, in accordance with the terms of this Agreement, LESSEE shall transfer clear and merchantable title of the Tower to LESSOR in "AS -IS" condition with no express or implied warranties, including but not limited to any warranties that the Tower is merchantable or fit for any particular purpose. The Parties agree to execute and deliver a bill of sale in the form attached hereto as Exhibit D. The bill of sale shall transfer title and ownership of the Tower free and clear of all liens, security interests, encumbrances, and mortgages created by LESSEE's construction of the Tower. LESSOR shall inspect the Tower within the thirty (30) days following completion of construction of the Tower. Thereupon, the Tower shall become the personal property of LESSOR. Upon execution of the bill of sale by the Parties, LESSOR shall thereupon, be and become, the absolute owner of and vested with full title to and ownership of the Tower. Notwithstanding the foregoing, LESSEE shall retain ownership of its equipment, conduits, fixtures, all personal property and any improvements at the Premises. 4. SURVEY LESSOR also hereby grants to LESSEE the right to survey the Property and Premises, and said survey shall then become Exhibit C which shall be attached hereto and made a part hereof, and shall control in the event of boundary and access discrepancies between it and Exhibit A. Cost for such work shall be borne by the LESSEE. 5. TERM; RENTAL; ELECTRICAL. a. This Agreement shall be effective as of the date of execution by both Parties, provided, however, the initial term shall be for five (5) years and shall commence on the Commencement Date (as hereinafter defined) at which time rental payments shall commence and be due at a total annual rental of Sixteen Thousand Dollars ($1 6,000) to be paid in equal monthly 2 installments on the first day of the month, in advance, to Blair City Treasurer, 218 South 16 Street, Blair, Nebraska 68008 or to such other person, firm or place as LESSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date by notice given in accordance with Paragraph 27 below. The Agreement shall commence based upon the date LESSEE commences installation of the equipment on the Premises. In the event the date LESSEE commences installation of the equipment on the Premises falls between the lst and 15 of the month, the Agreement shall commence on the 1 St of that month and if the date installation commences falls between the 16 and 31 of the month, then the Agreement shall commence on the 1St day of the following month (either the "Commencement Date "). LESSOR and LESSEE agree that they shall acknowledge in writing the Commencement Date. LESSOR and LESSEE acknowledge and agree that initial rental payment(s) shall not actually be sent by LESSEE until thirty (30) days after a written acknowledgement confirming the Commencement Date. By way of illustration of the preceding sentence, if the Commencement Date is January 1 and the written acknowledgement confirming the Commencement Date is dated January 14, LESSEE shall send to the LESSOR the rental payments for January 1 and February 1 by February 13. 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 upon request of LESSEE. b. LESSOR hereby agrees to provide to LESSEE certain documentation (the "Rental Documentation ") evidencing LESSOR's interest in, and right to receive payments under, this Agreement, including without limitation: (i) documentation, acceptable to LESSEE in LESSEE's reasonable discretion, evidencing LESSOR's good and sufficient title to and /or interest in the Property and right to receive rental payments and other benefits hereunder; (ii) a complete and fully executed Internal Revenue Service Form W -9, or equivalent, in a form acceptable to LESSEE, for any party to whom rental payments are to be made pursuant to this Agreement; and (iii) other documentation requested by LESSEE in LESSEE's reasonable discretion and approved by LESSOR, which approval may not be unreasonably withheld, conditioned or delayed. From time to time during the Term of this Agreement and within thirty (30) days of a written request from LESSEE, LESSOR agrees to provide updated Rental Documentation in a form reasonably acceptable to LESSEE. The Rental Documentation shall be provided to LESSEE in accordance with the provisions of and at the address given in Paragraph 27. Delivery of Rental Documentation to LESSEE shall be a prerequisite for the payment of any rent by LESSEE and notwithstanding anything to the contrary herein, LESSEE shall have no obligation to make any rental payments until Rental Documentation has been supplied to LESSEE as provided herein. Within fifteen (15) days of obtaining an interest in the Property or this Agreement, any assignee(s), transferee(s) or other successor(s) in interest of LESSOR shall provide to LESSEE Rental Documentation in the manner set forth in the preceding paragraph. From time to time during the Term of this Agreement and within thirty (30) days of a written request from LESSEE, any assignee(s) or transferee(s) of LESSOR agrees to provide updated Rental Documentation in a form reasonably acceptable to LESSEE, Delivery of Rental Documentation to LESSEE by any assignee(s), transferee(s) or other successor(s) in interest of LESSOR shall be a prerequisite for the payment of any rent by LESSEE to such party and notwithstanding 3 anything to the contrary herein, LESSEE shall have no obligation to make any rental payments to any assignee(s), transferee(s) or other successor(s) in interest of LESSOR until Rental Documentation has been supplied to LESSEE as provided herein. C. LESSOR shall, at all times during the Term, provide electrical service and telephone service access within the Premises. If permitted by the local utility company servicing the Premises, LESSEE shall furnish and install, at the sole expense of LESSEE, an electrical meter at the Premises for the_measurement of electrical power used by LESSEE's installation. In the alternative, if permitted by the local utility company servicing the Premises, LESSEE shall furnish and install an electrical sub -meter at the Premises for the measurement of electrical power used by LESSEE's installation. In the event such sub -meter is installed, the LESSEE shall pay the utility directly for its power consumption, if billed by the utility, and if not billed by the utility, then the LESSEE shall pay the LESSOR thirty (30) days after receipt of an invoice from LESSOR indicating the usage amount based upon LESSOR's reading of the sub - meter. LESSOR must send all invoices for power consumption, which invoices must include the site name and location number, i.e. (Location #NE 05 No School), to LESSEE at Verizon Wireless, P.O. Box 182727, Columbus Ohio 43218. LESSEE shall be permitted at any time during the Term, to install, maintain and /or provide access to and use of, as necessary (during any power interruption at the Premises), a temporary power source, and all related equipment and appurtenances within the Premises, or elsewhere on the Property in such locations as reasonably approved by LESSOR. LESSEE shall have the right to install conduits connecting the temporary power source and related appurtenances to the Premises. 6. EXTENSIONS This Agreement shall automatically be extended for four (4) additional five (5) year terms unless LESSEE terminates the Agreement. LESSEE must give LESSOR written notice of the intent to terminate at least three (3) months prior to the end of the then current term. 7. EXTENSION RENTALS The annual rental for the first (1st) five (5) year extension term shall be increased to Seventeen Thousand Dollars ($$17,000); the annual rental for the second (2nd) five (5) year extension term shall be increased to Eighteen Thousand Dollars ($18,000.00); the annual rental for the third (3rd) five (5) year extension term shall be increased to Nineteen Thousand Dollars ($19,000); and the annual rental for the fourth (4th) five (5) year extension term shall be increased to Twenty Thousand Dollars and five /100 Dollars ($20 8. ADDITIONAL EXTENSIONS If at the end of the fourth (4th) five (5) year extension term this Agreement has not been terminated by either Party by giving to the other written notice of an intention to terminate it at least three (3) months prior to the end of such term, this Agreement shall continue in force upon the same covenants, terms and conditions for a further term of five (5) years and for five (5) year terms thereafter until terminated by either Party by giving to the other written notice of its intention to so terminate at least three (3) months prior to the end of such term. The annual rental shall increase on each anniversary of the Commencement Date by an amount equal to three percent (3 %) of rent for the previous lease year. The initial term and all extensions shall be collectively referred to herein as the "Term ". M 9. TAXES LESSEE shall have the responsibility to pay any personal property taxes, real estate taxes, assessments, or charges owed on the Property which LESSOR demonstrates is the result of LESSEE's use of the Premises and/or the installation, maintenance, and operation of the LESSEE's improvements, and any sales tax imposed on the rent (except to the extent that LESSEE is or may become exempt from the payment of sales tax in the jurisdiction in which the Property is located), including any increase in real estate taxes at the Property which LESSOR demonstrates arises from the LESSEE's improvements and /or LESSEE's use of the Premises. LESSOR and LESSEE shall each be responsible for the payment of any taxes, levies, assessments and other charges imposed including franchise and similar taxes imposed upon the business conducted by LESSOR or LESSEE at the Property. Notwithstanding the foregoing, LESSEE shall not have the obligation to pay any tax, assessment, or charge that LESSEE is disputing in good faith in appropriate proceedings prior to a final determination that such tax is properly assessed provided that no lien attaches to the Property. Nothing in this Paragraph shall be construed as making LESSEE liable for any portion of LESSOR's income taxes in connection with any Property or otherwise. Except as set forth in this Paragraph, LESSOR shall have the responsibility to pay any personal property taxes, real estate taxes, assessments, or charges owed on the Property and shall do so prior to the imposition of any lien on the Property. LESSEE shall have the right, at its sole option and at its sole cost and expense, to appeal, challenge or seek modification of any tax assessment or billing for which LESSEE is wholly or partly responsible for payment. LESSOR shall reasonably cooperate with LESSEE at LESSEE's expense in filing, prosecuting and perfecting any appeal or challenge to taxes as set forth in the preceding sentence, including but not limited to, executing any consent, appeal or other similar document. In the event that as a result of any appeal or challenge by LESSEE, there is a reduction, credit or repayment received by the LESSOR for any taxes previously paid by LESSEE, LESSOR agrees to promptly reimburse to LESSEE the amount of said reduction, credit or repayment. In the event that LESSEE does not have the standing rights to pursue a good faith and reasonable dispute of any taxes under this paragraph, LESSOR will pursue such dispute at LESSEE's sole cost and expense upon written request of LESSEE. 10. USE; GOVERNMENTAL APPROVALS LESSEE shall use the Premises for the purpose of constructing, maintaining, repairing and operating a communications facility and uses incidental thereto. All improvements, equipment, antennas and conduits shall be at LESSEE's expense and their installation shall be at the discretion and option of LESSEE. LESSEE shall have the right to replace, repair, add or otherwise modify its utilities, equipment, antennas and /or conduits or any portion thereof and the frequencies over which the equipment operates, whether the equipment, antennas, fiber, conduits or frequencies are specified or not on any exhibit attached hereto, during the Term. It is understood and agreed that LESSEE's ability to use the Premises is contingent upon its obtaining after the execution date of this Agreement all of the certificates, permits and other approvals (collectively the "Governmental Approvals ") that may be required by any Federal, State or Local authorities as well as satisfactory soil boring tests and structural analysis which will permit LESSEE use of the Premises as set forth above. LESSOR shall cooperate with LESSEE in its effort to obtain such approvals and shall take no action which would adversely affect the status of the Property with respect to the proposed use thereof by LESSEE. In the event that (i) any of such applications for such Governmental Approvals should be finally rejected; (ii) any Governmental Approval issued to LESSEE is canceled, expires, 5 lapses, or is otherwise withdrawn or terminated by governmental authority; (iii) LESSEE determines that such Governmental Approvals may not be obtained in a timely manner; (iv) LESSEE determines that any soil boring tests or structural analysis is unsatisfactory; (v) LESSEE determines that the Premises is no longer technically or structurally compatible for its use, or (vi) LESSEE, in its sole discretion, determines that the use the Premises is obsolete or unnecessary, LESSEE shall have the right to terminate this Agreement. Notice of LESSEE's exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and shall be effective upon the mailing of such notice by LESSEE, or upon such later date as designated by LESSEE. All rentals paid to said termination date shall be retained by LESSOR. Upon such termination, this Agreement shall be of no further force or effect except to the extent of the representations, warranties and indemnities made by each Party to the other hereunder. Otherwise, the LESSEE shall have no further obligations for the payment of rent to LESSOR. 11. INDEMNIFICATION Subject to Paragraph 12 below, each Party shall indemnify and hold the other harmless against any claim of liability or loss from personal injury or property damage resulting from or arising out of the negligence or willful misconduct of the indemnifying Party, its employees, contractors or agents, except to the extent such claims or damages may be due to or caused by the negligence or willful misconduct of the other Party, or its employees, contractors or agents. 12. INSURANCE a. The Parties hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to the Premises or to the Property, resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Parties, or either of them. These waivers and releases sliall apply between the Parties and they shall also apply to any claims under or through either Party as a result of any asserted right of subrogation. All such policies of insurance obtained by either Party concerning the Premises or the Property shall waive the insurer's right of subrogation against the other Party. b. LESSOR and LESSEE each agree that at its own cost and expense, each will maintain commercial general liability insurance with limits not less than $1,000,000 for injury to or death of one or more persons in any one occurrence and $500,000 for damage or destruction to property in any one occurrence. LESSEE agrees that it will include LESSOR as an additional insured. 13. LIMITATION OF LIABILITY Except for indemnification pursuant to paragraphs 11 and 33, neither Party shall be liable to the other, or any of their respective agents, representatives, employees for. any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. D 14. ANNUAL TERMINATION Notwithstanding anything to the contrary contained herein, provided LESSEE is not in default hereunder beyond applicable notice and cure periods, LESSEE shall have the right to terminate this Agreement upon the annual anniversary of the Commencement Date provided that three (3) months prior notice is given to LESSOR. 15. ACCESS TO TOWER LESSOR agrees the LESSEE shall have free access to the Tower at all times for the purpose of installing and maintaining the said equipment. LESSOR shall furnish LESSEE with necessary means of access for the purpose of ingress and egress to this site and Tower location. It is agreed, however, that only authorized engineers, employees or properly authorized contractors of LESSEE or persons under their direct supervision will be permitted to enter said premises. 16. TOWER COMPLIANCE LESSOR covenants that it will keep the Tower in good repair as required by all Laws (as defined in Paragraph 37 below). The LESSOR shall also comply with all rules and regulations enforced by the Federal Communications Commission with regard to the lighting, marking and painting of towers. If the LESSOR fails to make such repairs including maintenance the LESSEE may make the repairs and the costs thereof shall be payable to the LESSEE by the LESSOR on demand together with interest thereon from the date of payment at the greater of (i) ten percent (10 %) per annum, or (ii) the highest rate permitted by applicable Laws. If the LESSOR does not make payment to the LESSEE within ten (10) days after such demand, the LESSEE shall have the right to deduct the costs of the repairs from the succeeding monthly rental amounts normally due from the LESSEE to the LESSOR. No materials may be used in the installation of the antennas or transmission lines that will cause corrosion or rust or deterioration of the Tower structure or its appurtenances. All antenna(s) on the Tower must be identified by a marking fastened securely to its bracket on the Tower and all transmission lines are to be tagged at the conduit opening where it enters any user's equipment space. Not later than thirty (30) days after completion of the Tower construction, LESSEE shall provide LESSOR with copies of all structural analysis reports and as built drawings for Tower. Thereafter, throughout the Term of the Agreement, LESSOR shall, within thirty (30) days of receipt of a written request from LESSEE, supply to LESSEE copies of all structural analysis reports completed with respect to the Tower. LESSOR shall supply to LESSEE copies of all structural analysis reports- that are done with respect to the Tower promptly after the completion of the same. Upon request of the LESSOR, LESSEE agrees to relocate its equipment on a temporary basis to another location on the Property, hereinafter referred to as the "Temporary Relocation," for the purpose of LESSOR performing maintenance, repair or similar work at the Property or on the Tower provided: a. The Temporary Relocation is similar to LESSEE's existing location in size and is fully compatible for LESSEE's use, in LESSEE's reasonable determination; b. LESSOR pays all costs incurred by LESSEE for relocating LESSEE's equipment to' the Temporary Relocation and improving the Temporary 7 Relocation so that it is fully compatible for the LESSEE's use, in LESSEE's reasonable determination; c. LESSOR gives LESSEE at least ninety (90) days written notice prior to requiring LESSEE to relocate; d. LESSEE's use at the Premises is not interrupted or diminished during the relocation And LESSEE is allowed, if necessary, in LESSEE's reasonable determination, to place a temporary installation on the Property during any such relocation; and e. Upon the completion of any maintenance, repair or similar work by LESSOR, LESSEE is permitted to return to its original location from the temporary location with all costs for the same being paid by LESSOR. 17. INTERFERENCE LESSEE agrees to install equipment of the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to any equipment of LESSOR or other lessees of the Property which existed on the Property prior to the date this Agreement 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 will take al] commercially reasonable steps necessary to correct and eliminate the interference, including but not limited to powering down such equipment and later powering up such equipment for intermittent testing. The Parties agree that so long as LESSEE is making a good faith effort to remedy the interference issue and thereafter continuously and diligently pursues the cure to completion, LESSEE shall not be deemed in default under this Paragraph. LESSOR agrees that LESSOR and /or any other tenants of the Property who currently have or in the future take possession of the Property will be permitted to install only such equipment that is of the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to the then existing equipment of LESSEE. The Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this Paragraph and therefore, either Party shall have the right to equitable remedies, such as, without limitation, injunctive relief and specific performance. 18. REMOVAL AT END OF TERM LESSEE shall, upon expiration of the Term, or within ninety (90) days after any earlier termination of the Agreenicnt, miiiove its building(s), antenna(s), equipment, conduits, fixtures and all personal property and restore the Premises to its original condition, reasonable wear and tear and casualty damage excepted. LESSOR agrees and acknowledges that all of the equipment, conduits, fixtures and personal property of LESSEE shall remain the personal property of LESSEE and LESSEE shall have the right to remove the same at any time during the Term, whether or not said items are considered fixtures and attachments to real property under applicable Laws. If such time for removal causes LESSEE to remain on the Premises after termination of this Agreement, LESSEE shall pay rent at the then existing monthly rate or on the existing monthly pro -rata basis if based upon a longer payment term, until such time as the removal of the building, antenna structure, fixtures and all personal property are completed. �611 19. HOLDOVER LESSEE has no right to retain possession of the Premises or any part thereof beyond the expiration of that removal period set forth in Paragraph 18 herein, unless the Parties are negotiating a new lease or lease extension in good faith. In the event that the Parties are not in the process of negotiating a new lease or lease extension in good faith, LESSEE holds over in violation of Paragraph 18 and this Paragraph 19, then the rent then in effect payable from and after the time of the expiration or earlier removal period set forth in Paragraph 18 shall be equal to the rent applicable during the month immediately preceding such expiration or earlier termination. 20. RIGHT OF FIRST REFUSAL If LESSOR elects, during the Term (i) to sell or otherwise transfer all or any portion of the Property, whether separately or as part of a larger parcel of which the Property is a part, or (ii) to grant to a third party by easement or other legal instrument an interest in and to that portion of the Tower and or Property occupied by LESSEE, or a larger portion thereof, for the purpose of operating and maintaining communications facilities or the management thereof, with or without an assignment of this Agreement to such third party, LESSEE shall have the right of first refusal to meet any bona fide offer of sale or transfer on the same terms and conditions of such offer so long as such right does not violate any applicable laws applicable to the transfer of property by a Nebraska Municipality. If LESSEE fails to meet such bona fide offer within thirty (30) days after written notice thereof from LESSOR, LESSOR may sell or grant the easement or interest in the Property or portion thereof to such third person in accordance with the terms and conditions of such third party offer. 21. RIGHTS UPON SALE Should LESSOR, at any time during the Term decide (i) to sell or transfer all or any part of the Property or the Tower thereon to a purchaser other than LESSEE, or (ii) to grant to a third party by easement or other legal instrument an interest in and to that portion of the Tower and or Property occupied by LESSEE, or a larger portion thereof, for the purpose of operating and maintaining communications facilities or the management thereof, such sale or grant of an easement or interest therein shall be under and subject to this Agreement and any such purchaser or transferee shall recognize LESSEE's rights hereunder under the terms of this Agreement. To the extent that LESSOR grants to a third party by easement or other legal instrument an interest in and to that portion of the Tower and /or Property occupied by LESSEE for the purpose of operating and maintaining communications facilities or the management thereof and in conjunction therewith, assigns this Agreement to said third party, LESSOR shall not be released from its obligations to LESSEE under this Agreement, and LESSEE shall have the right to look to LESSOR and the third party for the full performance of this Agreement. 22. (QUIET ENJOYMENT LESSOR covenants that LESSEE, on paying the rent and performing the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises. 23. TITLE LESSOR represents and warrants to LESSEE as of the execution date of this Agreement, and covenants during the Term that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. LESSOR further covenants during the Term that there are no liens, judgments or impediments of title on the Property, or affecting LESSOR's title to the same and that there are no covenants, easements or restrictions which prevent or adversely affect the use or occupancy of the Premises by LESSEE as set forth above. 9 24. INTEGRATION It is agreed and understood that this Agreement contains all agreements, promises and understandings between LESSOR and LESSEE and that no verbal or oral agreements, promises or understandings shall be binding upon either LESSOR or LESSEE in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing signed by the Parties or in a written acknowledgment in the case provided in Paragraph 5. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terms or conditions of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights at any time and take such action as may be lawful and authorized under this Agreement, in law or in equity. 25. GOVERNING LAW This Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the Laws of the State in which the Property is located. 26. ASSIGNMENT This Agreement may be sold, assigned or transferred by the LESSEE without any approval or consent of the LESSOR to the LESSEE's principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of LESSEE's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition or other business reorganization. As to other parties, this Agreement may not be sold, assigned or transferred without the written consent of the LESSOR, which such consent will not be unreasonably withheld, delayed or conditioned. No change of stock ownership, partnership interest or control of LESSEE or transfer upon partnership or corporate dissolution of LESSEE shall constitute an assignment hereunder. 27. NOTICES All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): LESSOR: City of Blair, Nebraska 218S. 16 Street Blair, NE 68008 Attention: LESSEE: Alltel Communications of Nebraska, Inc. d /b /a Verizon Wireless 180 Washington Valley Road Attention: Network Real Estate Bedminster, New Jersey 07921 Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. 10 28. SUCCESSORS This Agreement shall extend to and bind the heirs, personal representative, successors and assigns of the Parties hereto. 29. SUBORDINATION AND NON - DISTURBANCE At LESSOR's option, this Agreement shall be subordinate to any future master lease, ground lease, mortgage, deed of trust or other security interest (a "Mortgage ") by LESSOR which from time to time may encumber all or part of the Property, Tower or right -of -way; provided, however, as a condition precedent to LESSEE being required to subordinate its interest in this Agreement to any future Mortgage covering the Tower or Property, LESSOR shall obtain for LESSEE's benefit a non - disturbance and attornment agreement for LESSEE's benefit in the form reasonably satisfactory to LESSEE, and containing the terms described below (the "Non- Disturbance Agreement "), and shall recognize LESSEE's right to remain in occupancy of and have access to the Premises as long as LESSEE is not in default of this Agreement beyond applicable notice and cure periods. The Non - Disturbance Agreement shall include the encumbering party's ( "Lender's ") agreement that, if Lender or its successor-in-interest or any purchaser of Lender's or its successor's interest (a "Purchaser ") acquires an ownership interest in the Tower or Property, Lender or such successor -in- interest or Purchaser will (1) honor all of the terms of the Agreement, (2) fulfill LESSOR's obligations under the Agreement, and (3) promptly cure all of the then - existing LESSOR defaults under the Agreement. Such Non - Disturbance Agreement must be binding on all of Lender's participants in the subject loan (if any) and on all successors and assigns of Lender and /or its participants and on all Purchasers. In return for such Non - Disturbance Agreement, LESSEE will execute an agreement for Lender's benefit in which LESSEE: (1) confirms that the Agreement is subordinate to the Mortgage or other real property interest in favor of Lender, (2) agrees to attorn to Lender if Lender becomes the owner of the Tower or Property and (3) agrees to accept a cure by Lender of any of LESSOR's defaults, provided such cure is completed within the deadline applicable to LESSOR. In the event LESSOR defaults in the payment and/or other performance of any mortgage or other real property interest encumbering the Property, LESSEE, may, at its sole option and without obligation, cure or correct LESSOR's default and upon doing so, LESSEE shall be subrogated to any and all rights, titles, liens and equities of the holders of such mortgage or other real property interest and LESSEE shall be entitled to deduct and setoff against all rents that may otherwise become due under this Agreement the sums paid by LESSEE to cure or correct such defaults. 30. RECORDING LESSOR agrees to execute a Memorandum of this Agreement which LESSEE may record with the appropriate recording officer. The date set forth in the Memorandum of Lease is for recording purposes only and bears no reference to commencement of either the Term or rent payments. 31. DEFAULT. a. In the event there is a breach by LESSEE with respect to any of the provisions of this Agreement or its obligations under it, including the payment of rent, LESSOR shall give LESSEE written notice of such breach. After receipt of such written notice, LESSEE shall have fifteen (15) days in which to cure any monetary breach and thirty (3 0) days in which to cure any non- monetary breach, provided LESSEE shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (3 0) days and LESSEE commences the cure within the thirty (3 0) day period 11 and thereafter continuously and diligently pursues the cure to completion. 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 Paragraph. b. In the event there is a breach by LESSOR with respect to any of the provisions of this Agreement 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 Paragraph. 32. 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, including but not limited to the obtaining of reasonably required insurance policies. 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 Agreement, 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 Agreement and /or pursue any remedy now or hereafter available to the non- defaulting Party under the Laws or judicial - decisions of the state in which the Premises are located; provided, however, LESSOR shall use reasonable efforts to mitigate its damages in connection with a default by LESSEE. If LESSEE so performs any of LESSOR's obligations hereunder, the full amount of the reasonable and actual cost and expense incurred by LESSEE shall immediately be owing by LESSOR to LESSEE, and LESSOR shall pay to LESSEE upon demand the full undisputed amount thereof with interest thereon from the date of payment at the greater of (i) ten percent (10 %) per annum, or (ii) the highest rate permitted by applicable Laws. Notwithstanding the foregoing, if LESSOR does not pay LESSEE the full undisputed amount within thirty (30) days of its receipt of an invoice setting forth the amount due from LESSOR, LESSEE may offset the full undisputed amount, including all accrued interest, due against all fees due and owing to LESSOR until the full undisputed amount, including all accrued interest, is fully reimbursed to LESSEE. 33. ENVIRONMENTAL a. LESSOR will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or concerns as may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the Tower or Property, unless such conditions or concerns are caused by the specific activities of LESSEE in the Premises. 12 b. LESSOR shall hold LESSEE harmless and indemnify LESSEE from and assume all duties, responsibility and liability at LESSOR's sole cost and expense, for all duties, responsibilities, and liability (for payment of penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is in any way related to: a) failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene concerns or conditions as may now or at any time hereafter be in effect, unless such non- compliance results from conditions caused by LESSEE; and b) any environmental or industrial hygiene conditions arising out of or in any way related to the condition of the Tower or Property or activities conducted thereon, unless such environmental conditions are caused by LESSEE. 34. CASUALTY In the event of damage by fire or other casualty to the Tower or Premises that cannot reasonably be expected to be repaired within forty -five (45) days following same or, if the Property is damaged by fire or other casualty so that such damage may reasonably be expected to disrupt LESSEE's operations at the Premises for more than forty -five (45) days, then LESSEE may, at any time following such fire or other casualty, provided LESSOR has not completed the restoration required to permit LESSEE to resume its operation at the Premises, terminate this Agreement upon fifteen (15) days prior written notice to LESSOR. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Agreement. Notwithstanding the foregoing, the rent shall abate during the period of repair following such fire or other casualty in proportion to the degree to which LESSEE's use of the Premises is impaired. 35. CONDEMNATION In the event of any condemnation of all or any portion of the Property, this Agreement shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever occurs first. If as a result of a partial condemnation of the Premises or Tower, LESSEE, in LESSEE's sole discretion, is unable to use the Premises for the purposes intended hereunder, or if such condemnation may reasonably be expected to disrupt LESSEE's operations at the Premises for more than forty -five (45) days, LESSEE may, at LESSEE's option, to be exercised in writing within fifteen (15) days after LESSOR shall have given LESSEE written notice of such taking (or in the absence of such notice, within fifteen (15) days after the condemning authority shall have taken possession) terminate this Agreement as of the date the condemning authority takes such possession. LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the equipment, conduits, fixtures, its relocation costs and its damages and losses (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Agreement. If LESSEE does not terminate this Agreement in accordance with the foregoing, this Agreement shall remain in full force and effect as to the portion of the Premises remaining, except that the rent shall be reduced in the same proportion as the rentable area of the Premises taken bears to the total rentable area of the Premises. In the event that this Agreement is not terminated by 13 reason of such condemnation, LESSOR shall promptly repair any damage to the Premises caused by such condemning authority. 36. SUBMISSION OF AGREEMENT /PARTIAL INVALIDITY /AUTHORITY. The submission of this Agreement for examination does not constitute an offer to lease the Premises and this Agreement becomes effective only upon the full execution of this Agreement by the Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and shall not invalidate the remaining provisions of this Agreement. Each of the Parties hereto warrants to the other that the person or persons executing this Agreement on behalf of such Party has the full right, power and authority to enter into and execute this Agreement on such Party's behalf and that no consent from any other person or entity is necessary as a condition precedent to the legal effect of this Agreement. 37. APPLICABLE LAWS During the Term, LESSOR shall maintain the Property and all structural elements of the Premises in compliance with all applicable laws, rules, regulations, ordinances, directives, covenants, easements, zoning and land use regulations, and restrictions of record, permits, building codes, and the requirements of any applicable fire insurance underwriter or rating bureau, now in effect or which may hereafter come into effect (including, without limitation, the Americans with Disabilities Act and laws regulating hazardous substances) (collectively "Laws "). LESSEE shall, in respect to the condition of the Premises and at LESSEE's sole cost and expense, comply with (a) all Laws relating solely to LESSEE's specific and unique nature of use of the Premises (other than general office use); and (b) all building codes requiring modifications to the Premises due to the improvements being made by LESSEE in the Premises. 38. SURVIVAL The provisions of the Agreement relating to indemnification from one Party to the other Party shall survive any termination or expiration of this Agreement. Additionally, any provisions of this Agreement which require performance subsequent to the termination or expiration of this Agreement shall also survive such termination or expiration. 39. CAPTIONS The captions contained in this Agreement are inserted for convenience only and are not intended to be part of the Agreement. They shall not affect or be utilized in the construction or interpretation of the Agreement. [Signature Page to Follow] [Balance of page intentionally left blank] 14 SITE NAME: NE05 NO SCHOOL SITE NUMBER: ATTY /DATE: GI IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals the day and year first above written. LESSOR: ATTEST: &6�4 Brenda Wheeler, City Clerk WITNESS CONSUELO MANDUJANO City of Blair, Nebraska, a Nebraska Municipal Corporation B �-� Nam Ja es Realph Its: Mayo Date: ow LESSEE: Alltel Communications of Nebraska, Inc. d /b /a V ri on Wireless B NamVn Ra msey Its: Area Vice President Network Date: -) j :31 [f Tower Construction and Lease Agreement - Signature Page EXHIBIT A Legal Description of Premises P ROPOSED LESSEE'S LAND SPACE DESCRIPTION: That part of Tax Lot 202 lying In the Northwest Quarter of the Northeast Quarter (NW1 /4 NE1 t4) of Section Ten (10), Township Eighteen (18) North, Range Eleven (11) East of the 8th P.M., Washington County, Nebraska and being more particularly described as follows: Referring to the Southwest corner of Lot 9, Anderson's Addition, a V CTP (ound; thence northerly on an assumed bearing North 02 °51'51" West, on the westerly line of said Lot 9, 51,19 feet; thence westerly South 87°08'10" W, 49,82 feet, to the Point of Beginning of the described Land Space; thence following the perimeter of the described Land Space on the following bearings and distances: South 87 °08'24" West, 28.00 feet; thence North 02 "51'36" West. 40.00 feet; thence North 87 °08'24" East, 28,00 feet; thence South 02 "61 "3$" East, 40,00 feet, to the Point of Beginning. Containing a total calculated area of '1,'120 square feet or 0.025 acres, more or less. PROPOSED LESSEE'S ACCESS RIGHT OF WAY DESCRIPTION: An Access Right -of -Way, 20 feet In width, located in that part of Tax Lot 202 lying in the Northwest Quarter of the Northeast Quarter f NW 114 NE114) of Section Ten (10), Township Eighteen (18) North, Mange Eleven (11) East of the 6th P,fa., Washington County, Nebraska and the centerline being more particularly described as follows; Referring to the Southwest corner of Lot 9, Anderson's Addition, a 1" CTP found; thence northerly on an assumed bearing North 02'51'51" West, on the westerly line of said Lot 9, 51.19 feet; thence westerly South 87'08'10" W, 49,82 feet, to the Southeast corner of the described Land Space; thence following the perimeter of the described Land Space on the following bearings and distances: South 87 °08'24" West, 28,00 feet; thence North 02 *51'36" West, 40.00 feet; thence North 87`08'24" East, 18.00 feet, to the Point of beginning for the centerline of the described Access Right -of- -Way; thence northerly North 02 "51'43" West, 13.02 feet; thence northwesterly North 90 West, 33.85 feet; thence northerly North 02 "51'50" West, 38.47 feet; thence northeasterly North 66 0 28'52" East, 69.75 feet, to a Point of Intersection with the south Might of Way line of 32nd Street, also being the Point of Termination for the centerline of the described Access Bight -of -Way. Containing a total calculated area of 3110 square feet or 0.071 acres, more or less. PROPOSED LF-SS E *S UTILITY RiGHT O W AY DESCRIPTION: N: UTILITY R.00, #1: A Utility Right -of -Way, 8 feat in width, located in that part of Tax Lot 202 lying in the Northwest Quarter of the Nottheest Quarter (NW114 NE114) of Section Ten (10), Township Eighteen (18) North, Range Eleven (11) East of the 6th A.M., Washington County, Nebraska and the centerline being more particularly described as follows: Referring to the Southwest corner of Lot 9, Anderson's Addition, a 1" CTP found; thence northerly on an assumed bearing North 02 °51'51" West, on the westerly line of said Lot 9.51.19 feet; thence westerly South 87 "08'10" W, 49..82 feet, to the Southeast corner of described Land Space; thence following the perimeter of the described Land Space on tho following bearings and distances: South A7 West, 28.00 feet; thence North 02`51 West, 40.00 feet; thence North 87'08'2.4" East, 24,00, to the Point of Beginning for the centerline of the described Utility Right -of -Way; thence northerly North 02'61'43" )writ, 43.53 feet, to the, Point of Termination for the centerline of the described Utility Right -of -Way. Containing a total calculated area of 348 square feet or 0.008 acres, more or less. �4� �• ;�� i [311 UTILITY R, - O,W. #2; A Utility bight -oF Way, 8 feet in Width- located in that part of Tax Lot 202 lying in the Northwest Quarter of the Northeast Quarter (NW1 {4 NE114) of Section Ten ('10), Township Eighteen (18) North, Range Eleven (11) Eastof the 0th P.M., Washington County, Nebraska and the centerline being more particularly described as follows: Referring to the Southwest corner of Lent % Anderson's Addition, a i" CTP found; thence northerly on an assumed bearing North 02 °51'51" West, on the westerly line of said Lot 3, 51.11) feet; thence westerly South 87`08'10" W, 49.82 feet, to the Southeast corner of the described Land Space; thence foliowtng the perimeter of the described Land Space on the following bearings and distances: South 87 0 08'24" West, 28.00 feet; thence North 02 "51':36" West, 40.00 feet; thence North 87'0624" East, 28.00; thence South 02 °51'36" East, 32.58 feet, to the Point of Beginning for the centerline of the described Utility flight -of -Way; thence easterly North 87 1 08'08" East, 45.82 feet; thence northerly North 02`51'50" West, 110,36 feet, to the Point of Termination for the centerline of the described Utility Right- of-Way. Containing a total calculated area of 1,240 square feet or 0,025 acres, more or less. UTILITY R.© W. #3: A Utility Rigfit- of-ViI 8 feet in vadth, located in that part of Tax Lot 202 lying In the Northwest Quarter of the Northeast Quarter {NW114 NE114� of Section Ten (10), 'T'ownship Efghteen (18) North, Range Eleven (11) East of the 6th P,K, Washington County, Nebraska and the centerline being more particularly described as follows: Referring to the Southwest corner of Lot 9, Anderson's Addition. a 1" CTP found; thence northerly on an assumed bearing North 02 West, on the westerly line of said Lot 9, 51.19 feet: thence westerly South 87 49.82 feet, to the Southeast corner of the described Land Space; thence following the perimeter of the described Land Space on tilt; following bearings and distances: South 87 1 08'24" West, 28.00 feet; thence North 02`51 ., fI West, 40.00 feet; thence North 87'08'24" East, 28.00; theme South 02 East, 32.58 feet; thence departing said perimeter easterly North 87 East, 31.86 feet to Point "A "; thence northerly North 02 °51'50" West, 4,00 feet, to the Point of Beginning for the centerline of the described Utility Right-of-Way; thence northerly North 02`51'59" West, 49.41 feet, to the Point of TetwittJon for the centeriino of the described Utility Right of -Way. Containing a tulal r;alculatad area of 3 square feet or 0,009 acres, MI nr less. Exhibit A EXHIBIT B Lessee's Equipment Exhibit B CArAOCIW) 1,105CHOOL REV A CD5.cfw4 Fnnted bvz asimon on Jon 05, 2014 - 9:4 lam � 'C DCMMht 2013 . Pariake I Amoc*tes, 11C. • Al Rj#5 Reserved DRAWN BY. AB5 ChECKED BY: SEW u. z z 0 z Z U� FCC 0 0 00 - >, O O 00 0 :E a 0 IX 0 7T F 0 L� T A ril Q8A i0 DO 0 .0 A z HO 34 0 'M 4 ; .":: z �� R 2 2 Ln > 4 9 0 z X 0 00 IP4 0 R < q 0 Z LD > 0 0 In L r^ 0 C) XO L, 0 z C) i 0 0 In C -j i I Z . — C: -0- > In r > > r, g" C K z r: O Oz < E - Z > - n 321 5TKffT 0 71 z z z 71 0 z 7` 1 4 J F a 0 0 0 0 In In u 0 < < 22 F; rn n) 0 r rII I U) Z CI Z > X In Z: In All _rQ 00 0 ::E 0 ai 1 o ? a 0 , n 1 o w z > 2 Z: Cu r- z z C) < ;i -r 0 rn 0 a) > 0 0 G CO rTl < 0 1 :i rn 0 a 5 o z Pr 3 C: �u INS 1� o r z - N) ;� U) r" Ln 0 > -n c I ::i w Pr Ul rn n ?i 0 ii 00 _T S 0 z r Z ;v co A5 X2 e5 Inc. 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N .... - N D 7 K _ - j' ro3 W •� l O C� A o zN �a ro❑ ❑a W o a c K n ❑ '� or ^N ❑ a mo 3 o x 8 0 O °o� z �- '' n In W. ❑ c co Z `•� p z o c m tri I o m co - ro ;v •n W i s O0 Dm gip, �t —.4 a € to M ° to 00 tD � psr^ on a ,O -F,> (A W 1, �y� Jz I Wa w �z 2 I � m v EXHIBIT D BILL OF SALE WHEREAS, Alltel Communications of Nebraska, Inc. d /b /a Verizon Wireless, ( "Seller "), agrees to sell to City of Blair, Nebraska municipal corporation ( "Purchaser "), for and in consideration of the sum of Ten Dollars ($10.00), and other good and valuable consideration in hand paid, the receipt and sufficiency of which is hereby acknowledged, that certain monopole telecommunications tower, but excluding any antennas, amplifiers, cabling and other telecommunications equipment attached thereto (the "Transferred Assets "), being more particularly depicted in Attachment A hereto and incorporated herein by reference for all purposes. WHEREAS, this Bill of Sale is being entered into pursuant to the terms and conditions of that certain Tower Lease Agreement dated , 2014 between Seller and Purchaser pursuant to which Seller has agreed to convey the Transferred Assets to Purchaser. NOW, THERFORE, KNOW ALL MEN BY THESE PRESENTS, that, for and in consideration of the above sum, Seller hereby CONVEYS, GRANTS, SELLS, TRANSFERS AND ASSIGNS the Transferred Assets unto Purchaser, Seller and Purchaser acknowledge that it is Seller's intent to herein convey to Purchaser, Seller's entire right, title and interest in and to the aforementioned Transferred Assets and that despite Seller's good faith efforts to describe such Transferred Assets herein in its entirety, there may be errors, omissions or discrepancies in such description. If any errors, omissions of discrepancies in such description are discovered by Purchaser of Seller, the other party will execute and deliver any instrument reasonably necessary to remedy or correct such error, omission or discrepancy, and, on condition that Seller or Purchaser does so, such errors, omissions or discrepancies will not constitute a breach by Seller or Purchaser of this Bill of Sale. Purchaser acknowledges that it is the Purchaser's responsibility to comply with all applicable government requirements after the date of transfer from Seller to Purchaser of the Transferred Assets. Purchaser acknowledges that the Transferred Assets may be regulated for many reasons including, but not limited to: (a) The Transferred Assets may have associated registration, permit, license, certification, reporting, closure, notification and /or other requirements in order to Transferred Assets; (b) The Transferred Assets may have the potential for causing harm if operated or maintained improperly or without taking appropriate safety precautions; and /or (c) The Transferred Assets may also be subject to other regulatory requirements. If the Transferred Assets require permits, registrations or other notifications and/or actions by or to the government after the date of transfer from Seller to Purchaser, then Purchaser agrees that it shall, within the time period allowed by law, file any and all documentation (and pay any fees) necessary to Exhibit D meet the applicable requirements and this shall include all actions necessary to assure that Purchaser, and not Seller, is named as the owner of and person responsible for such Transferred Assets. Seller hereby represents and warrants to Purchaser that Seller is the absolute owner of said Transferred Assets, that said Transferred Assets is free and clear of all liens, charges and encumbrances, and that Seller has the full right, power and authority to sell said Transferred Assets and to make this Bill of Sale. Purchaser hereby acknowledges that Purchaser has had an adequate opportunity to make such legal, factual and other inquiries, investigations as the Purchaser deems necessary, desirable or appropriate, with respect to the Transferred Assets. Seller makes no representation about the condition of the Transferred Assets. Purchaser hereby accepts the Transferred Assets "AS IS" and at its own risk. Purchaser agrees to indemnify and hold Seller and its parent, affiliate and subsidiary companies harmless from any and all liability in connection with claims arising out of the compliance status of the Transferred Assets that arise after the date of this Bill of Sale and the ultimate disposal of the Transferred Asset. Except as may be required by law or expressly indicated in this document, SELLER MAKES NO WARRANTIES REGARDING THE TRANSFERRED ASSETS AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABLITY OR FITNESS OF SUCH TRANSFERRED ASSETS FOR THEIR INTENDED USE. SELLER CONVEYS THE TRANSFERRED ASSETS AS -IS WHERE -IS. SELLER WARRANTS THAT IT OWNS THE TRANSFERRED ASSETS AND THAT THE SAME ARE CONVEYED TO PURCHASER FREE OF ALL LIENS AND ENCUMBRANCES FURTHER, THE TRANSFERRED ASSETS WILL NOT BE CONBEYED IN VIOLATION OF ANY RIGHTS OF THIRD PARTIES. Notwithstanding this Disclaimer of Warranties, Seller will endeavor to pass through to Purchaser any existing manufactures' warranties on the Transferred Assets to the extent the same are reasonably transferable. TO HAVE AND TO HOLD the Transferred Assets unto Purchaser, its successors, legal representatives and assigns, forever. EXECUTED as of this SELLER: day of 5 2014, Alltel Communications of Nebraska Inc., d /b /a Verizon Wireless By: Printed Name: Date: Attest to by City Clerk: I it�:EM01IA City of Blair, Nebraska, a Nebraska municipal corporation By: Printed Name: Date: Exhibit D Prepared by and upon recording Please return to: Ginsberg Jacobs LLC 300 South Wacker Drive Suite 2750 Chicago, Illinois 60606 Attn: Steven F. Ginsberg, Esq. (Site Name: NE05 No School) MEMORANDUM OF TOWER CONSTRUCTION AND LEASE AGREEMENT his Memorandum of Tower Construction and Lease Agreement is made this J day of _j X; , 2014, between The City of Blair, Nebraska, a Nebraska Municipal Corporation with a mailing Uddress of 218 South 16 Street, Blair, Nebraska, 68008, hereinafter designated LESSOR and Alltel Communications of Nebraska, Inc. d /b /a Verizon Wireless, with its principal office located at One Verizon Way, Mail Stop 4AW 100, Basking Ridge, New Jersey 07920, hereinafter referred to as "LESSEE ". LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties" or individually as the "Party". 1. LESSOR and LESSEE entered into a Tower Construction and Lease Agreement (the "Agreement ") on — 7/ 3—, 2014 for an initial term of five (5) years, commencing on the Commencement Date. The Agreement shall automatically be extended for four (4) additional five (5) year terms unless the LESSEE terminates it at the end of the then current term by giving the LESSOR written notice of the intent to terminate at least six (6) months prior to the end of the then current term. 2. LESSOR hereby leases to LESSEE a portion of that a portion of that certain space (the "Tower Space ") on the LESSOR's tower, hereinafter referred to as the "Tower ", located at 3100 College Drive, Blair, Washington County, Nebraska as described in Book 80 of Deeds at Page 54 -55 as recorded in the Office of the Register of Deeds of Washington County, Nebraska (the entirety of LESSOR's property is referred to hereinafter as the "Property "), together with a 28' x 40' parcel of land (the "Land Space ") sufficient for the installation of LESSEE's equipment shelter; together with the non - exclusive right (the "Right of Way ") for ingress and egress, seven (7) days a week, twenty -four (24) hours a day, on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, fiber, poles, cables, conduits, and pipes over, under, or along a twenty foot (20') wide right -of -way extending from the nearest public right -of -way, College Drive, to the Land Space; and together with any further rights of way (the "Further Rights of Way ") over and through the Property between the Land Space and the Tower Space for the permitted installation and maintenance of utility wires, poles, cables, conduits, and pipes, The Tower Space, Land Space, Right of Way and Further Rights of Way are hereinafter collectively referred to as the "Premises ". The Premises are described in Exhibit A attached hereto and made a part hereof, and as shown on the plat of survey attached hereto and incorporated herein as Exhibit B. In the event any public utility is unable to use the aforementioned right -of -way, LESSOR has agreed to grant an additional right -of -way either to the LESSEE or to the public utility at no cost to the LESSEE. 3. The Co � encement Date of the Agreement, of which this is a Memorandum, is J(AIA a 4. LESSEE has a right of first refusal to purchase the Premises during the initial term and all renewal terms of the Agreement. 5. The terms, covenants and provisions of the Agreement, the terms of which are hereby incorporated by reference into this Memorandum, shall extend to and be binding upon the respective executors, administrators, heirs, successors and assigns of LESSOR and LESSEE. [Signature Page To Follow] N, IN WITNESS WHEREOF, hereunto and to a duplicate hereof, LESSOR and LESSEE have caused this Memorandum to be duly executed on the date first written hereinabove. LESSOR: City of Blair, Nebraska, a Nebraska Municipal Corporation ATTEST: Brenda Wheeler, City Clerk By. Na e: mes Realph Its: Mayor Date: 9 /1 C , // L l LESSEE: Alltel Communications of Nebraska, Inc. d /b /a rizon Wireless Nam : L nn Ramsey Its: Vice Presi en Network Date: ') [Acknowledgments Follow On Next Page] STATE OF NEBRASKA ) )ss. COUNTY OF WQSh a� ) LESSOR ACKNOWLEDGEMENT On this 1 day of Ck. \/ , 2014, before me, &ctr W&l - the undersigned Notary Public, duly commissions anA sworn, personally appeared, James Realph, personally known to me (or proved to me on the basis of satisfactory evidence) to be the Mayor of the City of Blair, a Nebraska municipal corporation, whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his /her authorized capacity, and that by his /her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official Notarial Seal, this A day of MC,t , 2014. 6" P"- ( "o hjt't� Notary Public My Commission Expires: '3 ne- 20 _ GENERAL NOTARY - State of Nebraska IIN BRENDA R WHEELER °° °° My Comm, Exp, June 20, 2016 STATE OF ILLINOIS ) ss. COUNTY OF COOK ) LESSEE ACKNOWLEDGEMENT 3 J Ann Goldstein On this day of 2014, before me, the undersigned Notary Public, duly co fissions and sworn, personally appeared Lynn Ramsey, personally known to me (or proved to me on the basis of satisfactory evidence) to be the Area Vice President Network of Alltel Communications of Nebraska, Inc. d /b /a Verizon Wireless, the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official Notarial Seal, this 3 aOa:Expires S Qo5/21/20 18 a My Com s day of 2014. Notary Public EXHIBIT A [WRITTEN METES AND BOUNDS OF THE PREMISES AND INGRESS/EGRESS AND UTILITY EASEMENT] PROPOSED LESSEE'S LAIRD SPACE DESC RIPTION: That part of Tax Lot 202 lying in the Northwest Quarter of the Northeast Quarter (NW114 NE114) of Section Ten (10), Township Eighteen (18) North, Range Eleven (11) C=ast of the 6th P.M., Washington County, Nebraska and being more particularly described as follows: Referring to the Southwest comer of Lot 9, Anderson's Addition, a 1" CTP found; thence northerly on an assumed bearing North 02 "51'51" WesL on the westerly line Of said Lot 9, 61.19 feet; thence westerly South 87'08'10" W, 49.8' feet, to the Point of Beginning of the described Land Space; thence following the perimeterof the described Land Space on the following bearings and distances: South 87 '08'24" West, 28.00 feet; thence North 02 "51'36" West, 40.00 feet; thence North 87`08'24 " East, 28.00 feet; thence South 02'51'36" East, 40,00 teat, to the Point of Beginning. Containing a total calculated area of 1,120 square feet or 0.026 acres, more or less. PROPOSED LESSEE'S ACCESS RIGHT OF WAY DESCRIPTION: An Access Right-of-Way, 20 feet in width, located in that part of `fax Lot 202 lying in the Northwest Quarter of the Northeast Quarter (NW114 NE-1/4) of Section Teri (10). Township Eighteen (18) North, Range Eleven (11) East of the 6th P.M., Washington County, Nebraska and the centerline being more particularly described as follows: Referring to the Southwest corner of Lot 9, Anderson's Addition, a 1" CTP found: thence northerly on an assumed bearing North 02 °57'51" West, on the westerly line of said Lot 9, 51.19 feet; thence westerly South 87"08'10'W, 49.82 feet, to the Southeast corner of the described Land Space; thence following the pedmeterof the described Land Space on the following bearings and distances: South 87 °08'24" Atirest, 28.00 feet; thence North 02 "81'36" West, 40.00 feet; thence North 87 °08'24" East, 18.00 feet, to the Point of Becginning for the centerline of the described Access Right -of -Way; thence northerly North 02'51'4.r West, 13.02 feet; thence northwesterly North 90 West, 33.85 feet; thence northerly North 02`51'50" West, 38.47 feet; thence northeasterly North 66"28'52" last, 69.75 feet, to a Point of intersection with the south Right of Way line of 32nd Street, also being the Point of Termtnation for the centerline of the described Access Right -of -Way. Containing a total calculated a off 3110square feet or 0,071 acres more or less, . P POS � ESSEWS UTILITY RIGHT OF WAY DESCRIPTION: : UTILITY R,O.W. 41: A Utility Right-v6-Way, 8 feet in width, located in that part ref "fax Lot 202 lying in the Northwal t Quarter of th* Northeast Quarter (NW1 /4 NE114) of Sric:lian Ten ( Township Eighteen (18) North, Range Eleven (11) East of the 6th P.M., Washington County, Nebraska and the centerline being more particularly described as follows: Referring to the Southwest comer of Lot 9, Anderson's Addition. a 1" CTP found; thence northerly on an assured bearing North 032`51151" West, on the westerly line of said Lo(9, ;51,1 y feet th ence westerly South 87 `08'10" W, 49.82 feet, to the Southeast corner of the described Land Space; thence following the perimeter of the described Land Space on the following bearinqs and distances: South 87 "08'24" West, 213.00 feet; thence North 02 °51'36" West, 40.00 feet; thence North 87'08'24" East, 24.00, to the Point of Beginning for the centerline of the described Utility Right -of -Way: thence northerly North 02 °5 51'43" East, 43.53 feet, to the Point of Termination for the centerline of the described Utility Right -of -Way. Containing a/ + total calculated area of 348 square feet or 0 ,0 x 088 acres, more or less. �w. y POSED LE EWS U I AY DESCRIPTI I UTILITY KQ,W, #2; A Utility Right - - 8 feet in width, located in that part of Tax Lot 202 lying in the Northwest Quarter of the Northeast Quarter (NW1 }4 NE114) of Section Ten (10), Township Eighteen (18) North, Range Eleven ( 1) Eastof the 6th P,M„ Washington County, Nebraska and the centerline being more particularly described as follows. Referring to the Southwest corner of Lot 9, Anderson's Addition, a 1" CTP found; thonce northerly on an assurned bearing North 02'51'51" West, on the westerly line of said Lot 9, 51,113 feet; thence westerly South 87`08'10`° W, 49.82 feet„ to the Southeast corner of the described Land Space; thenoa following the parameter of the described Land Space on the following bearings and distances: South 87 °08'24" West, 28.00 feet: thence North 172 "81'36" West, 40.00 feet; thence North 87 "08'24" East, 213.00; thence South 02 °61'36" East, 32.58 feet, to the point of Beginning for the centerline of the described Utility Right -of -Way; thence easterly North 137 "08'08" East, 45.82 feet: thence northerly North 02`5150" West, 110,16 feet to the Point of Termination for the centerline of the described Utility Righ# of -Way. Containing a total calculated area of 1,249 square feet or 0,029 acres m ore or less UTILITY R.0 .W.#3: A Utility Right-of-Way, 8 feet in width, located in that part of Tax Lot 2172 tying in the Northwest Qua -ter of the Northeast Ouarter{NW114 NE 114) of Section e'en (10), Township Eighteen (18) North, Range Eleven (11) East of the 6th P.M., Washington County, Nebraska and the centerline being more particularly described as follows: Referring to the Southwest corner of Lot 9 , Anderson's Addition, a 1" CTP found; thence northerly on an assumed bearing North 02 °51'51" West on the westerly line of said Lot 9, 61 A9 feet: thence westerly South 87 °08'10" W, 49.82 feet, to the Southeast corner of the described Land Space; thence following the perimeter of the described Land Space on the following bearings and distances: South 87 West, 28,00 feet thence North 02 `x1'36" West, 40.00 feet; thence North 87 °013'24" East, 28.00; thence South 02'61'36' Cast, 32.58 feet: thence departing said perimeter easterly North 87 1 08'08" least, 31.86 feet to Point "A'; thence nor *,her'ly North 02 "51'50" West. 4.00 feet, to the Point of Beginning for the centerline of the described Utility Right - -Way; thence northerly North 02 ° 51'60" West, 49.41 feet, to the Point of Termination for the centerline of the described Utility R Containing a total calculated area of 395 square feet or 0.009 acres, more or loss. 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