HomeMy WebLinkAbout08. 19-594 NOVEMBER 26, 2019 19-594 RESOLUTION
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE AGREEMENT WITH SPRINT FOR CELLULAR
ANTENNA INSTALLATION ON NEW MARION ROAD WATER
TOWER (27,600.00 ANNUAL PAYMENT TO CITY)
INITIATED BY: DEPARTMENT OF PUBLIC WORKS
BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper
City officials are hereby authorized to enter into an appropriate agreement with Sprint
for cellular Antenna installation on the new Marion Road Water Tower for an initial five
year term with two possible five year extensions. The proper City officials are hereby
authorized to execute and deliver the agreement in substantially the same form as
attached hereto, any changes in the execution copy being deemed approved by their
respective signatures, and said City officials are authorized and directed to take those
steps necessary to implement the terms and conditions of the Agreement.
Cit
City
of
Oshkosh
MEMORANDUM
TO. Honorable Mayor and Members of the Common Council
FROM: Steven M. Gohde, Assistant Director of Public Works/Utilities General Manager sw+i
DATE: November 21, 2019
RE: Approve Agreement with Sprint for Cellular Antenna Installation on New Marion Road
Water Tower ($27,600 Annual Payment to City)
BACKGROUND
During the planning process for the new Marion Road water tower, Sprint expressed an interest in
moving their existing cellular antenna installation to the new water tower. As part of the relocation
process, a new agreement was required to include changes for how the installation will be done on the
new tower and address outdated agreement language in the previous agreement with Sprint.
ANALYSIS
The fee schedule for the T-Mobile agreement is for a monthly payment of $2,300 per month ($27,600
annually) for the next five (5) years. The lease contains provisions for five (5) year extensions. The price
would increase to$2,700 per month($32,400 annually)for the first five-year lease extension,and to$3,100
per month($37,200 annually)for the second five-year lease extension.There is also an additional monthly
rental fee of $500 ($6,000 annually), for the first nine (9) years the lease is in effect, for the use of the
building provided by the Water Utility for housing the ground-level equipment.
FISCAL IMPACT
This installation will provide the Water Utility with a revenue source of $33,600 ($27,600 + $6,000) per
year for the first five (5) year term. Should the lease be extended, the rate increases are described above.
RECOMMENDATIONS
I recommend approval of this lease agreement with Sprint for this installation.
Approved.
A
Mar A. Rohloff
City Manager
SMG/tlt
I\Engmeenng\Tracy Taylor\Memos to Mayor&Common Council\2019\Spnnt-Cell Antenna Lease Page 1 of 1
Agreement-Marion Rd WtrTwr_11-21-19 docx
WATER TOWER/LAND LEASE AGREEMENT
"Lease Agreement"
Date:
Owner:
City o f Oshkosh
ATTN City Manager
215 Church Ave. P.0 Box 1130
Oshkosh, WI 54902-1130
Lessee:
Sprint Spectrum L.P.
Splint Property Services
Site ID ML25XC085
Mailstop KSOPHDO 101-Z2650
6220 Sprint Parkway
Overland Park, KS 66251-2650
Sprint Law Department
Attn. Real Estate Attorney
Site ID. ML25XC085
Mailstop: KSOPHD0101-Z2020
6220 Sprint Parkway
Overland Park, KS 66251-2020
City of Oshkosh, Wisconsin- Sprint Site ID: ML25XC085 (Marion Road Water Tower)
City Parcel: Owner owns a parcel upon which a municipal water tower is located ("City
Parcel"). Lessee enters into this non-exclusive lease of a part of the City Parcel for the purposes
described in this Lease Agreement. A description of the City Parcel within which the Leased
Premises will be located is attached as Exhibit A
Leased Premises: Leased Premises is defined as that part of the City Parcel which Lessee
will lease foi the purposes described in this Lease Agreement. A map of the Leased Premises is
attached as Exhibit B.
Rent: Rent is defined as the following.
$27,600 per year during the Initial Term
$32,400 per year during the First Renewal Teim
$37,200 per year during the Second Renewal Term
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* Plus an additional annual rental fee of$6,000 00 for the first nine (9) years that this Lease
Agreement is in effect for use of the equipment building, as more fully described in
Paragraph 4.(b), below.
Lessee may elect to make lease payments either on a monthly, or annual, schedule.
Lessee previously has made annual payments, and at the time of the execution of this
Agreement, has made lease payments, minus the $500.00 equipment building rental,
through August 31, 2018 Within thirty (30) days of the full execution of this Lease
Agreement, Lessee shall submit a lump sum payment for annual rental for the period of
September 1, 2018 through October 31, 2019 and equipment building rental for the
period from June 1, 2018 through October 31, 2019.
Lease Agreement
Owner and Lessee agree to enter into this Lease Agreement in consideration of the mutual
promises, covenants and understanding set forth in this Lease Agreement, and for other good and
valuable consideration The specific terms and conditions of this Lease Agreement are as
follows.
1 Purpose_ Owner operates a water tower that is part of its municipal water distribution
system on the City Parcel ("Water Tower"). Lessee provides cellular and other
communications services within the Oshkosh market and seeks to locate its facilities on the
Water Tower to utilize its height and location within the City. The purpose of this Lease
Agreement is to identify the mutually beneficial terms and conditions that will benefit and
burden each party to this Lease Agreement. •
2 Lease Owner agrees to lease to Lessee, and the Lessee agrees to lease from Owner,
the Leased Premises for the purposes described in this Lease Agreement and
according to the terms and conditions also described in this Lease Agreement. The
four (4) primary components ofthis Lease Agreement are: 1) Lessee's ability to place
its antennas and related facilities on the Water Tower, 2) Lessee's ability to place its
equipment in a specially installed building at or near the base o f the Water Tower; 3) •
Lessee's ability to install underground facilities, as necessary, to connect its facilities
in a nearby public right-of-way with its facilities in the equipment building and on
the Water Tower; and 4) access to its facilities within the Leased Premises. Lessee's
access and use of the Leased Premises shall be non-exclusive. Lessee's lease rights
are subject to existing easements, covenants, conditions, and restrictions ofrecord, if '
any, together with any restrictions arising from Owner's prior agreements with other
lessees for use of the Leased Premises and the City Parcel The specific, final,
location of Lessee's facilities shall be in a location approved by Owner, and shall be
in substantially the same location as identified in Exhibit "C," attached hereto.
3. Filings Lessee may make and file applications to such local, state, and federal
governmental entities whose approval Lessee may consider reasonably necessary or
advisable to have the Leased Premises approved as an antenna site so that it may
carry out its core business functions. Lessee's applications may include, but are not
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limited to, governmental approvals for zoning variances, zoning applications and
building permits. Lessee must follow all federal, state, and local laws, rules, and
regulations. To the extent Lessee wishes to request a variance, to otherwise request
an alteration or exception of any law, rule, or regulation, then the Lessee may do so.
Owner agrees that it will provide technical or other data or information about the
Leased Premise or the non-exclusive easement. Owner reserves the right to consent
or support, or to remain neutral, or to object to a variance or other effort to alter or
seek an exception to any law, rule, or regulation. Owner agrees to advise Lessee in
advance of its position on any o f Lessee's application.
4. Use Lessee may use the Leased Premises for the installation, operation,
maintenance, repair, replacement, upgrade, and eventual removal of facilities for the
transmission and reception of radio communication signals in such frequencies as
may be assigned to Lessee by the Federal Communications Commission ("FCC") and
for the operation ofrelated equipment in accordance with the provisions of this Lease
Agreement. Lessee shall use the Leased Premises in compliance with all federal,
state, local laws and regulations, including but not limited to OSHA safety
requirements. Owner agrees to reasonably cooperate with Lessee in obtaining, at
Lessee's sole expense, all licenses and permits required for Lessee's use of the Leased
Premises for normal business functions Lessee will use the Leased Premises in a
manner which will not unreasonably disturb the occupancy and use of Owner, or
other lessees of Owner, if other lessee's exist.
a Lessee shall have the right, at its sole cost and expense, to install, operate and
maintain the facilities on the leased portions of the Water Tower described in
Exhibit "C" attached hereto, which facilities include radio transmitting and
receiving antennas (the "Antenna Facilities"). Lessee's installation of all such
equipment, personal property, and facilities shall be done according to plans
approved by Owner, and no equipment or property shall be subsequently
relocated on the Water Tower or otherwise within the Leased Premises without
Owner's approval. Owner's approvals shall not be unreasonably withheld, delayed
or conditioned. The Antenna Facilities installed within the Leased Premises shall
temain the exclusive property of Lessee.
b. Owner will provide Lessee with exclusive use of an equipment building, of a
secured part of an equipment building, near the base o f the Water Tower. Owner
will provide a building that is appropriate for Lessee's intended use after
consultation with Lessee. Owner shall be responsible for maintaining the
equipment building Lessee shall have exclusive access to the interior of the
building, although Owner shall have the right, as the landlord, to access the
interior for any lawful purpose. Lessee shall be responsible for payment of an
additional lease payment in the amount of$500.00 each month for the first five
(5) years, followed by similar payments of$500 00 each month of the first four
(4) years of the first renewal period, for a total of nine (9) years of monthly
payments of $500 00 commencing June 1, 2018. In the event that this Lease
Agreement is terminated for any reason before the first nine (9) years have
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expired, then Lessee shall not be responsible for any monthly Lease rent
payments related to the equipment building after its equipment has been removed
from that building. Lease payments for the purpose of use of the equipment
building shall not reflect or convey any ownership interest in the building.
c. Owner will provide electrical service to the equipment building, but it is Lessee's
responsibility to install meters and other equipment so that it can establish and
use, at its own cost, an account for such electrical service. In the event that
Lessee needs additional utility service lines to extend from neighboring rights-of-
way or parcels, such service lines will be allowed through the Leased Premises
upon the approval of Owner, and such approval shall not be unreasonably
withheld. All such additional utility lines shall be underground, and shall be
installed, maintained, and removed at Lessee's expense.
or replace the Antenna Facilities from time to time with the
d Lessee may update p
prior written approval of Owner, provided that the replacement facilities are not
greater in size or density than the existing facilities and provided that their
location on the Leased Premises is approved by Owner. Lessee shall submit to
Owner a proposal for updated or replacement facilities, as well as any related
supplemental materials that are requested by Owner that will assist with it
evaluation and approval. Owner's approval shall not be unreasonably withheld,
delayed or conditioned. All costs for any studies and plan review of updated or
replacement facilities deemed necessary at Owner's discretion will be paid by
Lessee within 30 days of receipt of a detailed invoice.
e. At all times during the term o f this Lease Agreement, Lessee shall have the
ability within the Leased Premises for vehicular ingress, egress, and access via
designated paths to the equipment building, the base of the Water Tower, and
Lessee's other facilities within the Leased Premises. This ingress, egress, and
access shall not be exclusive.
f. Lessee shall separately meter charges for the consumption of electricity and any
other utilities associated with its use of the Leased Premises and shall pay all
costs associated therewith. All utilities will be buried in the designated non-
exclusive easement.
g. Lessee shall have sole responsibility for the maintenance, repair, and security of
its equipment, personal property, antenna facilities, and any other leasehold
improvements, and shall keep the same in good repair and condition during the
Lease Agreement term.
h. Lessee shall provide Owner with the name or names, and their contact
information, of the persons who will act as Lessee's emergency contacts.
These names may change from time to time, with Owner being notified in
writing when such contacts are changed. Lessee has advised Owner that it may
use a variety of employees, consultants, contractors, subcontractors, and agents
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to perform maintenance and repair activities related to the Antenna Facilities.
Due to the sensitive nature o f the Water Tower and public water supply system,
Owner shall be notified in advance of the identity of those companies and
persons who will be performing authorized work related to the Antenna
Facilities in, on, and attached to the Water Tower on behalf o f Lessee. Except
for emergencies, advance notice means at least one (1) week. An employee or
representative o f Owner must be on the Leased Premises during any Lessee
maintenance and repair of the Antenna Facilities in, on, or attached to the
Water Tower. Owner's water facility is a 24/7 operation, so Owner is flexible
in its ability to receive advanced notice and make representatives available.
Owner will provide a key box for access to the equipment building. A
representative of Owner is not required to be present when maintenance and
repair only involves Lessee's equipment building. Failure to provide this
information may result in Owner refusing access to the Water Tower and,
furthermore, may be considered a material breach and grounds for termination
o f the Lease Agreement at the discretion o f Owner.
i. Lessee must submit a description o f procedures used to check background o f
authorized personnel to minimize the potential of a security risk occurring due
to access being provided to the site by Owner.
j. Lessee shall not place any advertising within the Leased Premises including,
without limitation, on the Water Tower or the equipment building. Lessee may
install signage within the Leased Premises provide such signage is limited to
safety or similar warnings, or contact information related to Lessee's facilities,
provided proposed signage is submitted to and approved by Owner in advance
•
o f their installation
k. I f no screening is present on the Water Tower, then all antenna panels will be
painted to match the color o f the Water Tower.
L Lessee shall not install any fencing o f any type on or within the Leased
Premises.
m. Any reasonable additional costs incurred by the Owner for servicing or
maintaining the Leased Premises, including the Water Tower, that result from
the presence o f the Lessee's use o f the Leased Premises shall be reimbursed to
Owner by Lessee. I f Lessee's presence within the Leased Premises is only
partially responsible for additional costs, then Lessee shall only be responsible
for the proportional extent that they are the cause o f the additional costs.
n. The Owner will install and maintain a motion-sensitive security light on or near
the equipment building
o. Owner will notify Lessee, in writing, at least ninety (90) days in advance o f the
date when the Water Tower is scheduled to be painted The parties will
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cooperate to determine which of the following two options will be used to
address the impact of the Antenna Facility on the cost of painting the Water
Tower: 1) Shortly before the painting date, Lessee will place a temporary
antenna array on a crane parked near the site. Lessee will then remove the
antennas from the Water Tower and the painting will proceed as it normally
does. Once the painting is finished, Lessee will then re-attach the antennas
where they were and will have them painted to match the newly painted Water
Tower. 2) The painting contractor will bid on the cost o f painting the tower
without the Antenna Facility. The contractor will then bid on the cost o f painting
the tower with Lessee's antennas left in place. The contractor will then proceed
to paint the tower with Lessee's antennas left in place. Lessee will reimburse
Owner for the difference between the two bids. Regarding maintenance other
than painting, due to the uncertain nature and scope o f other maintenance and
repairs that may be necessary for the Water Tower, Owner cannot guarantee any
particular advanced notice. Certain maintenance and/or repair activities will be
identified with a longer lead time than other activities. However, Owner will
make reasonable efforts to notify Lessee o f other maintenance and/or repairs to
be undertaken that may affect, or be affected by, the Antenna Facilities. Owner
make its best efforts to follow the two-step bid process identified for painting
when performing other maintenance and repairs.
5. Term. The parties acknowledge and agree that they entered into a Water Tower/Land
Lease Agreement, dated February 19, 2016 ( Original Agreement"), which was terminated
as of November 5, 2017, due to the dismantling of the water tower subject to that
agreement and construction of a new water tower, the Water Tower under this Lease
Agreement The parties further acknowledge and agree that although this Lease Agreement
is considered to be in effect as of November 5, 2017, the parties operated under the terms
of the Original Agreement until the date of this Lease Agreement. Notwithstanding the
preceding sentence, the initial term o f this Lease Agreement shall be five (5) years,
commencing November 1, 2017 (the "Commencement Date") through October 31,
2022. The parties shall have the right to extend this Agreement for three (3)
additional five (5) year terms, subject to the terms and conditions o f this Agreement.
This Agreement shall automatically be extended for each successive renewal term,
unless Owner or Lessee notifies the Other party i f their intention not to extend the
Lease at least twelve (12) months prior to the expiration o f the initial or any renewal
term. The maximum length ofthis Agreement is twenty (20) years. Any subsequent
relationship between the parties shall be pursuant to a new Lease Agreement signed
to by the parties.
6 Rent The parties acknowledge and agree that, under the Original Agreement, Rent
has been paid through August 31, 2018 and continued accruing through the date of
this Lease Agreement, with any outstanding amounts due and payable within thirty
(30) days of such date. Beginning on the date of this Lease Agreement and
throughout the rest of the initial term of this Lease Agreement, Lessee shall pay
Rent to Owner as shown above, in annual payments, the first annual rental payable
as indicated above and thereafter on November 1 o f each year, with the first
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payment to include any prorated Rent from the date o f this Lease Agreement
through November 1, 2019. The agreed upon annual rental is for the Antenna
Facilities approved as of the date this Lease Agreement is fully executed. Lessee
shall not expand nature, scope, or footprint of the Antenna Facilities without
Owner's written agreement to allow such expansion of nature, scope, or footprint. In
the event this Lease Agreement is terminated by Owner under Paragraph 9(d)below,
all prepaid Rent will be refunded to Lessee on a prorated basis. In the event this
Lease Agreement is terminated by Lessee under Paragraphs 9(a), 9(b) or 9(c),
Lessee shall be entitled to reimbursement of all prepaid Rent prorated to the date of
termination.
7. Reasonable Approval. Both parties shall not unreasonably withhold, delay or
condition any approvals required under this Lease Agreement.
8. Interference to Public Water System.
The Leased Premises shall at all times have a primary purpose as a component o f
Owner's public water supply system It shall be the function of the FCC, FAA, and
other similar regulating bodies to ensure that the frequency and similar issues of the
Antenna Facilities are not disruptive to Owner's use of the Leased Premises as a
component o f its public water supply system. Similarly, the actual equipment and
other personal property comprising the Antenna Facilities shall not result in a
disruption o f Owner's use o f the Leased Premises as component o f its public water
supply system. The parties do not believe that the aforementioned will prevent
Lessee's full use of he Leased Premises, such priorities could, in some
circumstances, require adjustments by Lessee to accommodate the priority of the
Leased Premises as a component of Owner's public water supply system. Lessee's
installation, operation, and use of its transmission facilities under this Lease
Agreement shall not damage or interfere in any way with Owner's Water Tower
operations, or as provided for in Paragraph 4(o) above, Owners related repair and
maintenance activities. Except as set forth in Paragraph 4(o) above, Owner, at all
times during this Lease Agreement, reserves the right to take any action it deems
necessary, in its sole discretion, to repair, maintain, alter, or improve the Leased
Premises and to temporarily interfere with Lessee's leasehold improvements as may
be necessary in order to carry out any of such activities. Owner agrees to give
reasonable advance notice of such activities to Lessee and to reasonably cooperate
with and provide compensation or reimbursement to Lessee for actions necessary to
carry out such activities with a minimum amount of Interference with Lessee's
transmission operations. The aforementioned compensation or reimbursements shall
be limited to reductions in rent payments that is proportional to any reduced ability
to use the Water Tower.
a Owner shall not guarantee to Lessee exclusive use of, or non-interference with,
Lessee's transmission operations; provided, however, that in the event any other
party requests permission to place any type o f additional antenna or transmission
facility on the Water Tower after Lessee, this Paragraph will govern the
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determination o f whether such antenna or transmission facility will interfere
with Lessee's transmission operations. If Owner receives any such request,
Owner shall submit the proposal to Lessee for review for non-interference.
Lessee shall have thirty (30) days following receipt of said proposal to make any
objections thereto, and failure to make any objection within said thirty (30) day
period shall be deemed consent by Lessee to the installation of antennas or
transmission facilities pursuant to said proposal.
b. In the event that Lessee's transmission operations interfere with any type of
electronic reception or transmission of any other parties on the adjacent
properties, Lessee agrees to use its reasonable best efforts to remedy such
interference in accordance with applicable regulations and standards o f the FCC.
Lessee warrants that it shall maintain all of the Antenna Facilities in full
compliance with all applicable regulations o f the FCC and other governing
bodies. Lessee will be responsible for resolving any intermodulation problems
with other users o f the Water Tower and underlying City Parcel, should they
occur due to the equipment installed and operated by Lessee.
9. Termination. Except as otherwise provided herein, this Lease Agreement may be
terminated by either party upon thirty (30) days written notice to the other party for
the reasons described in this Paragraph Upon termination o f this Lease Agreement
for any reason, Lessee shall remove all ofits equipment, personal property, Antenna
Facilities, structure and leasehold improvements from the Water Tower and the
Leased Premises within ninety (90) days after the date of termination, and shall
restore the Water Tower and the Leased Premises to the condition it was in on the
Commencement Date, ordinary wear and tear and loss by casualty excepted, all at
Lessee's sole cost and expense. Any such personal property which is not removed
by end o f said ninety (90) day period shall be considered abandoned and will be
removed and disposed of by Owner at Lessee's expense. The parties agree that
during this ninety (90) day period in which Lessee's property is to be removed, their
relationship, including rights, responsibilities, and obligations, will be materially
similar to the terms of this Lease Agreement that are consistent with the intended
temporary term to allow the removal of property Lessee also agrees to sign all
necessary documents at the termination of this Lease Agreement to ensure that any
lien, encumbrance, or cloud against the Leased Premises and/or the City Parcel that
are related to this Lease Agreement are cleared from the title. The Lease
Agreement may be terminated.
a B y either party, upon a default of any covenant or term hereof by the other party,
which default is not cured within thirty (30) days of receipt o f written notice of
default to the other party, provided that such thirty (30) day period shall be
extended as reasonably necessary in the event that the party alleged to be in
default is proceeding in good faith with due diligence to cure such default but is
unable to do so within such thirty (30) day period;
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Ail J
b. By Lessee, if it is unable to obtain or maintain any license, permit, or other
governmental approval necessary to carry out the functions of Lessee's business,
including but not limited to the construction and/or operation ofthe transmission
facilities,
c. By Lessee, if the Leased Premises is, or becomes, unacceptable under the
Lessee's design or engineering specifications for its Antenna Facilities or the
communication systems to which the Antenna Facilities belong;
d. By Owner, upon twelve (12) months prior written notice to Lessee ("Notice
Period"), if the Water Tower is destroyed, dismantled, or removed, or if Owner
determines, in its sole discretion and for any reason, the structure to be
structurally unsound for use as a Water Tower, including but not limited to
consideration of age o f the structure, damage of destruction o f all or part of the
Water Tower or the underlying property; provided, however, that in the event
Lessee is not able to secure a relocation for its facilities sufficient to maintain
services to its customers within the Notice Period, Lessee shall have the right to
erect and maintain, at Lessee's cost, temporary communications facilities at a
mutually agreeable location on the City Parcel where the Water Tower was
located, or at a nearby property also owned by Owner, provided relocation to the
nearby property does not adversely affect Lessee's normal business functions in •
a material way, during the Notice Period, and
e. By Lessee, i f the Leased Premises, Water Tower, or Antenna Facilities are
destroyed or damaged so as, in Lessee's judgment to render the site unusable as
an Antenna Facility. In the event Lessee elects to terminate the Lease, Lessee
shall be entitled to reimbursement o f any prepaid Rent prorated to the date o f
termination or the date all Lessee equipment is removed, whichever is later.
10. Insurance.
a. Lessee shall maintain, at its sole cost during the term of this Lease Agreement,
commercial general liability insurance insuring Lessee and Owner against
liability for personal injury, death or damage to personal property arising out of
Lessee exercising its leasehold rights Such insurance shall provide coverage in
an amount not less than Two Million Dollars ($2,000,000.00) per occurrence
and in an amount if not less than Five Million Dollars ($5,000,000.00)
aggregate Additionally, Lessee shall have an umbrella policy covering the
aforementioned liabilities in the amount of Five Million Dollars
($5,000,000.00) Owner shall be added to the policy as an additional insured.
Lessee reserves the right to satisfy the insurance requirements herein through
self insurance
b. Owner shall maintain general liability insurance insuring Owner against
liability for personal injury, death or damage to personal property arising out of
its ownership, use and management ofthe City Parcel and Leased Premises by
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Owner or its agents, with limits of not less than One Million Dollars
($1,000,000.00) per occurrence.
11, Condemnation. In the event the whole o f the Leased Premises is taken by eminent
domain, this Lease Agreement shall terminate as o f the date title to the Leased
Premises vests in the condemning authority. In the event a portion o f the Premises
is taken by eminent domain, either party shall have the right to terminate this Lease
Agreement as o f said date o f title transfer, by giving thirty (30) days written notice
to the other party. In the event of any taking under the power o f eminent domain,
Lessee shall not be entitled to any portion at the award paid for the taking and
Owner shall receive the full amount o f such award, Lessee hereby expressly
waiving any right or claim to any portion thereof. Although all damages, whether
awarded as compensation for diminution in value o f the leasehold or the fee o f the
Leased Premises, shall belong to Owner, Lessee shall have the right to claim and
recover from the condemning authority, but not from Owner, such compensation as
may be separately awarded or recoverable by Lessee on account of any and all
damage to Lessee's business by reason of the taking and for or on account of any
cost or loss to which Lessee might be put in removing and relocating its
equipment, Antenna Facilities and leasehold improvements. Owner will refund on
a pro-rata basis all prepaid Rents on the date title to the Leased Premises vests in
the condemning authority or on the date o f termination in the event a portion o f the
Leased Premises is taken by the condemning authority and this Lease Agreement is
terminated. The pro-rata amount to be refunded shall be based on the time Lessee's
equipment and facilities are located on the Leased Premises, including the municipal
water tower, and, if applicable, on the Leased Premises.
12, Indemnification, Lessee agrees to indemnify, defend, and hold harmless Owner and its
elected officials, officers, employees, agents, and representatives, from and against any and
all claims, costs, losses, expenses, demands, actions, a- causes of action, including
reasonable attorneys' fees and other costs and expenses o f litigation, which may be asserted
against or incurred by Owner or for which Owner may be held liable, which arise from the
negligence, willful misconduct, or other fault of Lessee or its employees, agents, or
subcontractors in the performance of this Lease or from the installation, operation, use,
maintenance, repair, removal, or presence of Lessee's transmission facilities on the Leased
Premises, including the Water Tower, and i f applicable, the Owner's Property.
Subject to any limitations contained in Sec. 893.80 and any similar statute, of the
Wisconsin Statutes, Owner agrees to hold Lessee, its officers, officials, employees and
agents harmless from any and all liability, including claims, demands, losses, costs,
damages, and expenses of every kind and description (including death), or damages to
person or property arising out of the terms of this Lease Agreement where such liability is
founded upon or grows out of the acts or omissions of any of Owner's officers, employees
or agents while acting within the scope of their employment.
It is the intention of the Parties that each party shall be responsible for its own negligence,
or willful or intentional acts, actions and activities under this Lease Agreement, including
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Lessee both for itself and on behalf of its officers, officials, employees, agents, partners,
and associates, and further, to achieve said purpose, that this Paragraph be liberally
construed in favor ofthe party seeking indemnification.
13 Notices, All notices, requests, demands, and other communications hereunder shall be in
writing and shall be deemed given if personally delivered or mailed by regular first class
mail to the addresses listed above
14 Representations and Warranties. Owner warrants that• (1) it has full right, power, and
authority to execute this Lease Agreement; and (2) to the best of its knowledge, it has good
and unencumbered title to the Leased Premises free and deal of any liens or mortgages,
except as may be disclosed by review of title. Owner warrants that Lessee shall have the
quiet enjoyment of the Leased Premises during the term of this Lease Agreement in
accordance with the terms o f this Lease Agreement.
a Owner warrants that it has no knowledge of any substance, chemical, or waste
(collectively, "Substance") on the Leased Premises that is identified as hazardous, toxic
or dangerous in any applicable federal, state or local taw or regulation. Owner will have
sole responsibility for the identification, investigation, monitoring and remediation and
cleanup of any pre-existing Substances prior to the date Lessee occupies the Leased
Premises Owner shall hold Lessee harmless from and indemnify Lessee against any
damage, loss, expense, response costs, or liability, including consultants' fees and
attorneys' fees resulting from the presence of any Substance on, under or around the
City Parcel that is the result of Owner's actions and that materially affects Lessee's use
of the Leased Premises as long as the Substance was not introduced by Lessee, its
employees, agents of contractors. Neither Owner nor Lessee, or their employees,
agents or contractors shall introduce any Substance in violation of any applicable
federal, state, or local law or regulation to the Leased Premises.
b. Lessee, at its own cost has the right to obtain a title commitment for a leasehold title
policy from a title insurance company of its choice and any environmental evaluation it
deems necessary. If, in the opinion of Lessee, such environmental reports are
unsatisfactory or such title commitment shows any defects of title or any liens or
encumbrances which may adversely affect Lessee's use of the Leased Premises, Lessee
shall have the right to cancel this Lease Agreement immediately upon written notice to
Owner and a pro-rata amount of all prepaid Rents shall be refunded to Lessee as
of the termination date of this Lease Agreement, or upon the removal of all
Lessee equipment, whichever is later. The pro-rata amount to be refunded shall
be based on the time Lessee's equipment and facilities are located on the Leased
Premises, including the Water Tower, and, if applicable, on the City Parcel.
15. Assignment and Sublease. This Lease Agreement shall not be assigned or sublet
without the prior written consent of Owner Exceptions to an assignment or
subletting requiring the consent ofOwner are as follows: a) assignment or subletting
to any entity which controls, is controlled by, or is under the common control with
Lessee, or, b) assignment or subletting to any entity resulting from any merger or
- 11 —
August 28.2019
consolidation with Lessee; or, c) assignment or subletting o f certain lease rights to
any entity which obtains a security interest in a substantial portion of Lessee's assets.
Owner shall be notified in writing in advance of any assignment or subletting not
requiring its consent. Owner acknowledges that, upon execution, this Lease
Agreement will be automatically assigned by Lessee to its affiliate, Sprint Spectrum
Realty Company, LLC and no further notice to Owner of such assignment is required.
Owner retains the right to request and receive all reasonable documentation related
to any assignment or sublease Owner shall be entitled to receive information it
deems necessary to determine what, as it pertains to the Leased Premises, is being
assigned or sublet, as well as, in the case of assignment, to whom the rights and
responsibilities o f this Lease Agreement are being assigned
16. Recording Documents. This Lease Agreement shall provide Lessee with a leasehold
pioperty interest in the Leased Premises described in Exhibits "B" and "C" to the
extent described in this Lease Agreement. At the time o f execution, Owner shall
execute, acknowledge, and deliver to Lessee for recording a Memorandum of this
Lease ("Memorandum") in such form as agreed upon by the parties. Lessee may, at
its sole option and expense, record such Memorandum in the Winnebago County
Register o f Deeds The parties agree to draft, execute, and record any document
related to this Lease Agreement that is reasonably required to clear Owner's title to
the City Parcel and the Leased Premises
17. Miscellaneous.
b This Lease Agreement constitutes the entire agreement and understanding o f the
parties, and supersedes all offers, negotiations, and other agreements o f any kind.
There are no representations or understandings of any kind not set forth herein.
Any modification of or amendment to this Lease Agreement must be in writing
and executed by both parties.
c. This Lease Agreement shall be construed in accordance with the laws of the
State o f Wisconsin The venue for resolution o f disputes shall be Winnebago
County, Wisconsin.
d If .any term of this Lease Agreement is found to be void or invalid, such
invalidity shall not affect the remaining terms of this Lease Agreement, which
shall continue in full force and effect.
(Signature Pages to follow.)
- 12 -
August 28,2019
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
CITY OF OSHKOSH, WISCONSIN
By:
Mark A Rohloff
Its: City Manager
By:
Pamela R Ubrig
Its: City Clerk
Approved as to form.
By. _
Lynn A Lorenson
Its City Attorney
STATE OF WISCONSIN
SS
COUNTY OF WINNEBAGO )
Personally came before me this _ day of , 2019, the above-named Mark A
Rohloff and Pamela R Ubrig, to me known to be the City Manager and City Clerk of the City of
Oshkosh, Wisconsin and the person who executed the foregoing document and acknowledged
the same.
Notary Public, State of Wisconsin
My commission expires:
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE}
- 13 -
August 28.2019
r� -
SPRINT SPECTRUM L.P,
a Delaware limited partnership
By.
Silvia-f�.in (name)
Its. -manager,[-eatEtta = Ii��� I� (title)
STATE OF 4 et.a
SS
COUNTY OF(44..nzt.efrl )
Personally came before me this ( day ofjW1 2riM 2019, the above-named
a,6.,r. ,to me known to be the7A �ti red -fie ctn . (title)
ofSprint Spectrum, L.P., a Delaware limited partnership, arc(the person who executed the
foregoing document and acknowledged the same
*
Notary Public Notary Public, State of`� gs,Q_
State of Kansas My commission. •
Pamela D.MahonQy LMy Commission Expires IP Wb.22
- 14 -
August 28,2019
Marion Road Water Tower Parcel - Legal Description
Lot 1 in Certified Survey Map No. 7150 filed in Volume 1 of Survey Maps, Page 7150 as
Document Number 1724920; said Map being part of Lot 4 in Certified Survey Map No.
6553, being part of the Southeast Quarter of the Northeast Quarter (SE 1/4of the NE 1/4)
and part of the Northeast Quarter of the Southeast Quarter (NE 1/4of the SE 1/4)in
Section Twenty-three (23), Township Eighteen (18) North, Range Sixteen (16) East, in
the First Ward, City of Oshkosh, Winnebago County, Wisconsin.
Tax Parcel Number 901-0200-01
1
Exhibit A id
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Tx:42n181
CERTIFIED SURVEY MAP No.0 •
ARE-01VI,I1ot1 OF LOTS OF CERT1nE03LRVE,•6Up ROMER63a; A:COM •
96910A pART cc Ti SOVTIIE.L6T Y OFT,F NORn1EASTY,AND PART CFTte WOR9FTAST 32OPTH4
SOVni71EAST Y OR SECTO N 23,70'0S1►Ts NORM RANGE to EAST,OF TM FOORT1 P.M..PIRST'
WARD,CITY OF OSHKOSit HAHNEEA00 COUNTY,V,tSCCNSW.
,
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