CITY OF WARRENVILLE DuPage County, Illinois RESOLUTION NO.2014-06 RESOLUTION APPROVING LEASE TERMINATION AGREEMENT AND GENERAL RELEASE UNITED STATES CELLULAR OPERATING COMPANY OF CHICAGO, LLC WHEREAS, the Mayor and City Council believe and hereby declare that it is in the best interests of the City to approve a and General Release with United States Cellular Operating Company of Chicago, LLC; NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF WARRENVILLE, DU PAGE COUNTY, ILLINOIS, AS FOLLOWS: SECTION ONE: The recitals set forth hereinabove shall be and are hereby incorporated into this Section One as if said recitals were fully set forth herein. SECTION TWO: The and General Release attached hereto as Exhibit 1 shall be and is hereby approved, and the Mayor is hereby authorized and directed to execute said and General Release in substantially the form attached hereto. SECTION THREE: All policies and resolutions of the City that conflict with the provisions of this resolution shall be and are hereby repealed to the extent of such conflict. SECTION FOUR: This resolution shall be in full force and effect from and after its passage and approval in the manner provided by law. PASSED THIS day of, 2014. AYES: NAYS: ABSENT: APPROVED THIS day of, 2014. ATTEST: Mayor City Clerk JM\173875\8/12/14
EXHIBIT 1 LEASE TERMINATION AGREEMENT AND GENERAL RELEASE This LEASE TERMINATION AGREEMENT AND GENERAL RELEASE (the Agreement ) is made as of, 2014, by and between United States Cellular Operating Company of Chicago, LLC, a Delaware limited liability company( Tenant ) and City of Warrenville, an Illinois municipal corporation ( Owner ) with reference to the following facts, understandings and intentions: RECITALS A. Owner owns, or has a leasehold or management interest in, or otherwise has the right to use certain property located at 4750 West Street, Warrenville, Illinois ( Owner s Property ). United States Cellular Operating Company of Chicago, LLC, as lessee, tenant or licensee (or successor in interest to the lessee, tenant, or licensee), and Owner, as lessor, landlord, or licensor (or successor in interest to the lessor, landlord, or licensor), are parties to that Option Tower and Ground Space Lease dated as of February 20, 2007 (the Lease ) whereby Owner leases to Tenant a portion of Owner s Property, as further described in the Lease (the Site ). B. Tenant uses the Site for a communications facility that, pursuant to the Lease, may include among other things, an antenna tower or pole and foundation, utility lines, transmission lines, an air conditioned equipment room or shelter and pad, cable wiring, conduit runs, radios and other electronic equipment, transmitting and receiving antennas and microwave dishes, batteries and other power sources (possibly including a generator and pad), related fixtures and supporting equipment, and structures therefor (collectively, the Communications Facility ). C. By letter dated April 30, 2014, as permitted by the terms of the Lease, Tenant notified Owner of Tenant s election to terminate the Lease, effective as of the Termination Date (as defined below) ( Notice ). Owner acknowledges that Tenant s written Notice was properly given and effective. D. Tenant and Owner are willing to so terminate the Lease, pursuant to the provisions of this Agreement. 1 LN Vendor
AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. Date of Termination; a. The Lease is hereby canceled and terminated effective at 11:59 p.m. on August 31, 2014. ( Termination Date ). From and after the Termination Date, neither Owner nor Tenant will have any further rights or obligations under the Lease, and Tenant will have no further right or interest with respect to the Site. 2. Vacation and Surrender of the Site; Site Acceptance. a. Owner and Tenant have expressly agreed that notwithstanding anything to the contrary in the Lease, on or before the Termination Date, Tenant will vacate and surrender the Site to Owner in its current AS-IS condition, except that Tenant will follow the deconstruction plans attached hereto as Exhibit B ( Deconstruction Plans ). b. Except as detailed above, Tenant will have no further obligation (notwithstanding anything to the contrary contained in the Lease or otherwise) to remove the Communications Facility or related Equipment, personal property, fixtures and/or improvements located on the Premises as of the date hereof (all of which will be deemed abandoned by Tenant and accepted by Owner), or otherwise repair or restore the Site or any other portion of Owner s Property. Upon Tenant s vacation of the Site, Owner and Tenant will each execute duplicate originals of a Site Acceptance and Release in the form attached hereto as Exhibit A ( Site Acceptance ). For the sake of clarification, the Site Acceptance is meant to document the proper performance of the contractual obligations as set forth herein, but the Site Acceptance should never be interpreted to change or modify either party s obligations and the failure to sign or enter into it will not excuse either party from their performance of this Agreement, including, but not limited to Tenant s removal or restoration requirements, if any, and Owner s Release of Tenant. 3. Release of Obligations. Except for Owner s and Tenant s respective rights to enforce the provisions of this Agreement, effective as of the Termination Date, Owner and Tenant, for themselves and their respective parent, subsidiary and related corporations, partners, affiliates, heirs, successors and assigns, do each hereby release and forever discharge each other and their present and former directors, officers, shareholders, managers, agents, trustees, beneficiaries, attorneys and employees (the Released Parties ) from all obligations, damages, losses, costs, expenses and liabilities whether known or unknown, contingent or direct, liquidated or unliquidated, and from any claims, demands, judgments, actions or suits of any kind (collectively, Claims ) which they may have against one another arising out of or relating to the Lease, and the use and occupancy of Site, the Communications Facility and/or Owner s Property, 2 LN Vendor
including without limitation, any attorneys fees incurred in connection therewith. Each party acknowledges the possibility that the other party may have unknown Claims against the other arising out of or related to the Lease, and the use and occupancy of Site, the Communications Facility and/or Owner s Property, and that by signing this Agreement, each party expressly waives such Claims. The parties further acknowledge that the consideration for this mutual release takes into account the possibility of such further Claims. Landlord also acknowledges that the release of Tenant specifically includes, but is not limited to, the provisions of Paragraphs 25 and 17 of the Lease. 4. Representations and Warranties. 4.1 Effective as of the date hereof, Tenant represents and warrants to Landlord that (i) Tenant has not assigned the Lease except as otherwise noted herein, (ii) Tenant has the full right, legal power and corporate authority to enter into this Agreement without needing the consent of any other person, firm or entity; (iii) Tenant has the full right, legal power and corporate authority to bind Tenant to the terms and conditions hereof; and (iv) a duly authorized officer has executed and delivered this Agreement on behalf of Tenant and this Agreement is a legal, valid and binding agreement enforceable against Tenant in accordance with its terms. 4.2 Effective as of the date hereof, Landlord represents and warrants to Tenant that (i) Landlord has the full right, legal power and corporate authority to enter into this Agreement without needing the consent of any other person, firm or entity; (ii) Landlord has the full right, legal power and corporate authority to bind Landlord to the terms and conditions hereof; and (iii) a duly authorized officer has executed and delivered this Agreement on behalf of Landlord and this Agreement is a legal, valid and binding agreement enforceable against Landlord in accordance with its terms. 5. Voluntary Agreement. The parties have read this Agreement and the releases contained herein and, on advice of counsel, have freely and voluntarily entered into this Agreement with full understanding of its terms. 6. Recitals. The above recitals are an integral and substantive part of this Agreement and are incorporated herein. 7. Attorneys Fees. If either party commences an action against the other party arising out of or in connection with this Agreement, the prevailing party will be entitled to recover attorneys fees and expenses from the other. 8. Successors. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 9. Counterparts. This Agreement may be executed in any number of duplicate originals or counterparts, each of which will be deemed to be an original, and all of which taken 3 LN Vendor
together will constitute one and the same agreement. The parties agree that their signatures may be delivered by fax or email. 10. Governing Law. The validity, interpretation, construction and performance of this Agreement will be controlled by and construed under the laws of the state in which the Site is located. IN WITNESS WHEREOF, the parties have executed this and General Release as of the date and year first above written. OWNER City of Warrenville, an Illinois municipal corporation TENANT United States Cellular Operating Company of Chicago, LLC, a Delaware limited liability company By: Name: Title: Date: By: Name: Title: Date: 4 LN Vendor
Exhibit A SITE ACCEPTANCE and RELEASE This SITE ACCEPTANCE and RELEASE is made as of August 31, 2014 ( Effective Date ), by and between United States Cellular Operating Company of Chicago, LLC, a Delaware limited liability company ( Tenant ) and City of Warrenville, an Illinois municipal corporation ( Owner ) with reference to the following facts, understandings and intentions: A. Owner and Tenant are parties to that LEASE TERMINATION AGREEMENT and GENERAL RELEASE dated, 2014 (the Agreement ), that terminated a Lease for a Site on Owner s Property located at 4750 West Street, Warrenville, Illinois (USCOC Site #8831365), all terms of which are incorporated herein. Capitalized terms used but not defined herein have the meanings set forth in the Agreement. B. Tenant used the Site for a communications facility that may have included, among other things, an antenna tower or pole and foundation, utility lines, transmission lines, an air conditioned equipment room or shelter and pad, cable wiring, conduit runs, radios and other electronic equipment, transmitting and receiving antennas and microwave dishes, batteries and other power sources (possibly including a generator and pad), related fixtures and supporting equipment, and structures therefor (collectively, the Communications Facility ). C. Tenant removed some or all of the Communications Facility and restored the Site and Owner s Property to the condition required by the Lease and the Agreement, and Tenant vacated and surrendered the Site to Owner as of the Effective Date. The parties now desire to execute this Site Acceptance and Release, pursuant to the Agreement. NOW, THEREFORE, in consideration of the foregoing, the provisions set forth below, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Owner hereby acknowledges that, as of the Effective Date, Tenant has vacated, surrendered and restored the Site and Owner s Property to the condition required by the Lease and the Agreement and that any portion of the Communications Facility (and any other equipment or property) remaining on Owner s Property shall be deemed abandoned by Tenant (collectively, the Abandoned Property ); Owner accepts any such Abandoned Property in its present condition AS-IS, WHERE-IS and WITH ALL FAULTS, and without any representations, warranties, promises, covenants or guaranties whatsoever, express, implied, oral, written, statutory or otherwise (including, without limitation, no warranties of merchantability, marketability, profitability, fitness for a particular purpose or conformity to models or materials); and Owner fully and forever releases Tenant and the Released Parties from all Claims and any and all liability whatsoever in connection with the foregoing and the Lease, and agrees to indemnify, defend and hold Tenant and the Released Parties harmless from and against all Claims and any and all losses, costs, liabilities, damages, claims, actions and causes of action (including attorneys fees and court costs) arising out of or relating in any way to any such Abandoned Property. OWNER Executed on, 2014 City of Warrenville, an Illinois municipal corporation By: Name: Title: 5 LN Vendor
Exhibit B DECONSTRUCTION PLANS Scope of Work Equipment Shelter (Built on site w/concrete Foundation): Remove Modcell cabinet, rectifier and battery rack from shelter Concrete foundation, shelter, and all components to remain. Seal all openings/penetrations in shelter. Antenna Mounts (located on top of water tank): Remove antennas, antenna pipes and related grounding Paint Bolt Holes Antenna mounts to remain. Coax: Remove all coax and related jumpers. Cap all penetrations at top and base of water tank. Coax Mounts (inside water tank) Coax mounts(cable hanger) to remain. Underground Coax Conduit Coax conduit to remain. Cap conduits at both end. Utilities: Power Conduit and wire from Panel/PPC to equipment cabinet and rectifier/battery to be removed. Power Company to remove jug from meter Conduit and wire from electric panel to the meter to remain. Telco Telephone company to remove Smartjack/Demarc. Conduit and wire from telco board to telco demarc located on back of shelter to remain. Ground (Shelter): All interior and exterior grounding to remain. 6 LN Vendor