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HomeMy WebLinkAbout09. 12-303 JUNE 12, 2012 12-303 RESOLUTION (CARRIED___7-0____LOST _______LAID OVER _______WITHDRAWN _______) PURPOSE: APPROVE AGREEMENTS FOR WATER TOWER LEASES WITH T-MOBILE CENTRAL LLC INITIATED BY: CITY ADMINISTRATION WHEREAS, T-Mobile Central LLC has requested agreements with the City of Oshkosh to lease space atop the Washburn Street Water Tower, the Marion Road Water Tower, and the County Road N Water Tower to install telecommunications equipment; and WHEREAS, the terms of the negotiated agreements include the following provisions:  The initial term of this Lease shall be five (5) years, commencing July 1, 2012 through June 30, 2017, with the option to renew for two (2) additional five (5) year terms  Annual rent of $22,800 to be paid annually during the initial term.  Annual rent of $27,600 per year (minimum) during the first renewal term.  Annual rent of $32,400 per year (minimum) during the second renewal term.  The City, namely the Utilities Superintendent, retains final approvals concerning placement of the antenna systems on the towers and of the support equipment, plus any landscaping requirements, on each site. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the proposed agreement with T-Mobile Central LLC, is approved and the proper City officials are hereby authorized to execute and deliver the agreements in substantially the same form as on file in the office of the City Clerk for public inspection, 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. (Copies of the proposed Agreements are available for review in the Office of the City Clerk or on the City’s website at www.ci.oshkosh.wi.us) ( 0 Of HKOf H ON THE WATER MEMORANDUM TO: Honorable Mayor and Members of the Common Council FROM: Stephan M. Brand, Public Works Utility Bureau Manager DATE: June 6, 2012 RE: Approve Agreements for Cellular Antenna Installations for T- Mobile on Marion Road, Washburn Street, and County N Water Towers BACKGROUND T- Mobile has requested the use of the above - referenced water towers for the installation of cellular antenna installation to provide cellular coverage for T- Mobile in the Oshkosh area. The utility currently has leases with other cellular providers on various water towers. This agreement is for a five -year term with two five -year lease extensions available. ANALYSIS Based on research of leases in other communities, a monthly payment of $1,900.00 per month for each tower was determined to be a fair lease value for these installations for the first five years. The price increases to $2,300.00 per month for the second lease term and $2,700.00 per month for the third lease term. FISCAL IMPACT These installations will provide a Water Utility revenue source of $68,400.00 per year for the first lease term with increases as noted should the lease agreement be extended. RECOMMENDATIONS I recommend approval of the lease agreement with T- Mobile for these installations. Respectfully Submitted, Stephan M. Brand Public Works Utility Bureau Manager Approved: ark A. Rohlo## City Manager H.Vracytl Tracy' sRes441emosto Mayor R Common Counci620121T- MobileTwer Lease Memo 6.6.12.do" WATER TOWER/LAND LEASE AGREEMENT Date: June 13, 2012 Owner: City of Oshkosh ATTN: City Manager 215 Church Ave. P.O. Box 1130 Oshkosh, WI 54902 -1130 Lessee: T- Mobile Central LLC, a Delaware limited liability company 12920 SE 38th Street Bellevue, WA 98006 Attn: Lease Compliance - Site Number ML94466 (Washburn St. Large Barrel tank along highway) Premises: The property described on Exhibit A attached. Rent: $1,900.00 per month; $22,800.00 to be paid annually during the Initial Term $2,300.00 per month; $27,600.00 per year (minimum) during the First Renewal Term $2,700.00 per month; $32,400.00 per year (minimum) during the Second Renewal Term Agreement In consideration of the mutual promises, covenants and understanding set forth in this Agreement, and for other good and valuable consideration, the parties agree as follows: 1. Demise Subject to the terms and conditions of this Agreement, Owner leases to Lessee and Lessee leases from Owner the Premises together with a non - exclusive easement for the reasonable access to the Premises and to the appropriate, in Lessee's discretion, source of electric, telephone and data communications facilities. Access to the Premises is subject to all existing easements, covenants, conditions, and restrictions of record, if any, together with any restrictions arising from Owner's prior agreements with other lessees for use of the Premises, and is further subject to the site drawing described on Exhibit "A" attached hereto. 2. 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 Premises approved as an antenna site, including but not limited to governmental approvals for zoning variances, zoning applications and building permits. Owner agrees that an executed copy of this Agreement is as effective as the -1- original, but, if requested by Lessee, Owner shall execute such other and further documents as may be required by the governmental entity in question to evidence Owner's consent to the action which is proposed to be taken. Owner shall provide reasonable cooperation and assistance to Lessee in obtaining all governmental approvals required by Lessee, with any expenses to be paid by Lessee. 3. Use. Lessee may use the 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 of related equipment in accordance with the provisions of this Lease. Lessee shall use the 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 Premises. Lessee will use the Premises in a manner which will not unreasonably disturb the occupancy of Owner or Owner's other lessees, if any. 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, 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 without Owner's approval which approvals shall not be unreasonably withheld, delayed or conditioned. The Antenna Facilities shall remain the exclusive property of Lessee. In addition, this Lease includes a ten foot by twenty foot (14' x 20') parcel on the ground at the Base of the Water Tower upon which Tenant will construct its Equipment Shelter as described below, together with an easement of appropriate width from the Water Tower to the Equipment Shelter, all in accordance with its site plan as approved by Owner. Lessee agrees to pay Owner's reasonable review, inspection, and administrative costs, estimated to be $6000.00, following Owner's submission of detailed invoices to Lessee. b. Lessee may update or replace the Antenna Facilities from time to time with the prior written approval of Owner, provided that the replacement facilities are not greater in size than the existing facilities and provided that their location on the leased portions of the tower is satisfactory to Owner. Lessee shall submit to Owner a proposal for any such replacement facilities, and for any supplemental materials as may be reasonably requested for Owner's evaluation and approval, which approval shall not be unreasonably withheld, delayed or conditioned. All costs for required structural studies will be paid by Lessee within 30 days of receipt of a detailed invoice. c. Lessee shall have the right at its sole cost and expense, to install, operate and maintain on the Premises the Antenna Facilities and other improvements described in this Lease, which improvements will include a structure to house -2- Lessee's equipment ( "Equipment Shelter "). All such improvements shall be constructed in accordance with Owner's specifications and according to a site plan approved by Owner. The Equipment Shelter and all equipment stored or operated therein, for the benefit of Lessee, shall remain the exclusive property of Lessee. All appropriate permits must be obtained prior to construction and use of the Equipment Shelter. Lessee acknowledges Owner's desire to have such equipment stored near the Water Tower facility and shall use its best efforts to accommodate Owner's desire. d. At all times during this Lease, Owner hereby grants to Lessee a nonexclusive easement for vehicular ingress, egress, and access over the Premises, which gives Lessee access to the Equipment Shelter and to the base of the Water Tower at no additional charge to Lessee. Additionally, at all times during this Lease, Owner hereby grants to Lessee a nonexclusive easement for the installation, maintenance, repair, upgrade and replacement of utility lines for electricity, telephone, data communications and /or other necessary utilities over, under and across the Property which provides Lessee utility service to the Premises and Equipment Shelter and to the base of the Water Tower at no additional charge to Lessee. All such utility lines installed by Tenant shall be at locations determined by Tenant and approved by Owner, in advance, which Owner approval shall not be unreasonably withheld, delayed or conditioned. e. Lessee, at all times during this Lease, shall have vehicular access to the Premises and the Equipment Shelter in order to install, operate and maintain its transmission facilities. f. Lessee shall separately meter charges for the consumption of electricity and any other utilities associated with its use of the Premises and shall pay all costs associated therewith. All utilities will be buried. g. Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personal property, Antenna Facilities, Equipment Shelter, and any other leasehold improvements, and shall keep the same in good repair and condition during the Lease term. h. Lessee must provide emergency contact information along with a list of all authorized service personnel including name address and phone number. This includes all contactors and subcontractors. This list must be kept up to date by lessee and submitted to the City's Director of Public Works at least annually or when any changes to authorized personnel occurs. Failure to provide this information will be grounds for termination of the contract. i. Lessee must submit a description of procedures used to check background of authorized personnel to minimize the potential of a security risk occurring due to access being provided to the site by the Owner. -3- j. There will be no advertising on the Premises or on any structure on the Water Tower, the Equipment Shelter. k. All antenna panels will be painted to match the color of the Water Tower. 1. The site will be landscaped according to plans approved by Owner. m. Any reasonable additional costs for servicing or maintaining the Water Tower that are due to the presence of the installation of the Antenna Facilities, the Equipment Shelter, or any other Lessee equipment, will be the responsibility of Lessee. n. A motion - sensitive security light will be installed on the Equipment Shelter, if constructed. o. Owner will notify Lessee at least ninety (90) days in advance of the date when the Water Tower is scheduled to be painted. The parties will 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 of painting the tower Without the Antenna Facility. The contractor will then bid on the cost of 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. 4. Term The initial term of this Lease shall be five (5) years, commencing July 1, 2012 (the "Commencement Date ") through June 30, 2017. Lessee shall have the right to extend this Agreement for two additional five year terms, subject to the terms and conditions of this Agreement. This Agreement shall automatically be renewed for each successive renewal term unless Lessee notifies Owner of Lessee's intention not to renew the Lease at least six (6) months prior to the expiration of the initial or any renewal term. Thereafter, this Lease may be renewed upon such terms and conditions as the parties may then agree provided that Lessee shall notify Owner of its intention to renew this lease at least six (6) months prior to the expiration of third, five -year term. 5. Rent For the initial term of this Lease, Lessee shall pay Rent to Owner as shown above in annual payments, payable on the Commencement Date and on the anniversary of the Commencement Date thereof. The annual rent for each renewal term shall be (a) adjusted by a factor equal to the change in Cost of Living (CPI -U, as measured in the Milwaukee Metropolitan Area by the Bureau of Labor Statistics or successor federal agency) since the beginning of the immediately preceding five- year term and the commencement date of the applicable renewal term, or (b) adjusted in accordance with the minimum increase shown above, whichever is greater. In the event this Lease is terminated by Owner under Section 11(d) below, all prepaid rents will be refunded to Lessee. In the event this Lease is terminated by Lessee under Sections 11(a), 11(b) or 11(c), Lessee shall be entitled to reimbursement of all prepaid rent prorated to the date of termination. 6. Reasonable Approval Both parties shall not unreasonably withhold, delay or condition any approvals required under this Lease. 7. Interference. a. Lessee's installation, operation, and use of its transmission facilities under this Lease shall not damage or interfere in any way with Owner's Water Tower operations or related repair and maintenance activities. Owner, at all times during this Lease, reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the 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 Lessee to carry out such activities with a minimum amount of Interference with Lessee's transmission operations. b. 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 of additional antenna or transmission facility on the Water Tower or the Premises after Lessee, this paragraph will govern the determination of 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. Any dispute between Owner and Lessee regarding the proposed additional installation and its potential for interference with Lessee's transmission operations shall be resolved by submitting the issue for decision to an independent third party mutually agreed upon by Owner and Lessee, whose decision regarding interference shall be binding on both parties hereto and whose expense shall be borne equally by Lessee and the party requesting such permission. c. 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 of the FCC. Lessee warrants that it shall maintain all of its Antenna Facilities in full -5- compliance with all applicable regulations of the FCC and other governing bodies. Lessee will be responsible for resolving any intermodulation problems with other users of the Water Tower and underlying property, should they occur due to the equipment installed and operated by Lessee. 8. Termination Except as otherwise provided herein, this Lease may be terminated by either party upon thirty (30) days written notice to the other party as contained in this Paragraph. Upon termination of this Lease for any reason, Lessee shall remove all of its equipment, personal property, Antenna Facilities, structure and leasehold improvements from the Water Tower and the Premises within ninety (90) days after the date of termination, and shall restore the Water Tower and the Premises to the condition it was in on the Commencement Date, ordinary wear and tear excepted, all at Lessee's sole cost and expense. Any such personal property which is not removed by end of said ninety (90) day period shall become the property of Owner. a. By 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 of 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; b. By Lessee, if it is unable to obtain or maintain any license, permit, or other governmental approval necessary for the construction and /or operation of the transmission facilities or Lessee' business; c. By Lessee, if the 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, if the Water Tower is destroyed, dismantled or removed, or if the 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 of the structure, damage or destruction of all or part of the Water Tower or the underlying property from any source, or factors relating to condition of the Premises in which event Lessee shall have the right to erect and maintain temporary communications facilities on the Premises at a location as close as reasonably possible to the location of the Water Tower for a period of up to one (1) year at the then current rental rate for the purpose of continuing to provide service to the community while Lessee seeks to permit another site. In the event Lessee elects to terminate the Lease, Lessee shall be entitled to reimbursement of any prepaid rent prorated to the date of termination. e. By Lessee, if the 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 902 entitled to reimbursement of any prepaid rent prorated to the date of termination. 9. Insurance a. Lessee shall maintain, at its sole cost during the term of this Agreement, commercial general liability insurance insuring Lessee and Owner against liability for personal injury, death or damage to personal Premises arising out of the use of the Site by Lessee. Such insurance shall provide coverage in an amount not less than One Million Dollars ($1,000,000.00) for bodily injury or death to one or more persons and in an amount if not less than One Million Dollars ($1,000,000.00) for Premises damage. 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 Premises arising out of its ownership, use and management of the Owner's Premises by Owner or its agents, with combined single limits of not less than One Million Dollars ($1,000,000.00). c. Notwithstanding anything in this Agreement to the contrary, each parry releases the other party from all liability, whether for negligence or otherwise, in connection with a loss covered by any policy(s) which the releasing party carries with respect to the Premises or personal property located upon the premises, but only to the extent that such loss is collected under such insurance policy(s). Any policy required to be obtained pursuant to this Section shall contain a Waiver of Subrogation in favor of the other party hereto. 10. Condemnation In the event the whole of the Premises is taken by eminent domain, this Lease shall terminate as of the date title to the Premises vests in the condemning authority. In the event a portion of the Premises is taken by eminent domain, either party shall have the right to terminate this Lease as of said date of title transfer, by giving thirty (30) days written notice to the other party. In the event of any taking under the power of eminent domain, Lessee shall not be entitled to any portion at the award paid for the taking and Owner shall receive the full amount of 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 of the leasehold or the fee of the 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, personal Premises, Antenna Facilities and leasehold improvements. Owner will refund all prepaid rents on the date title to the Premises vests in the condemning authority or on the date of -7- termination in the event a portion of the Premises is taken by the condemning authority and this Lease is terminated. 11. Indemnification Except for the negligent acts, willful misconduct or other fault of Owner's elected officials, officers, employees, agents and representatives, 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, or causes of action, including reasonable attorneys' fees and other costs and expenses of 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 Premises and the Water Tower. Subject to any limitations contained in Sec. 893.80 and any similar statute, of the Wisconsin Statutes, the 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 Agreement where such liability is founded upon or grows out of the acts or omissions of any of the 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 solely responsible for its own acts, actions and activities under this Agreement, including Lessee's Authorized Parties and further, to achieve said purpose, that this paragraph be liberally construed in favor of the party seeking indemnification. 12. 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. 13. Representations and Warranties Owner warrants that: (1) it has full right, power, and authority to execute this Lease; and (2) to the best of its knowledge, it has good and unencumbered title to the Premises free and clear 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 Premises during the term of this Lease in accordance with its terms. a. Owner warrants that it has no knowledge of any substance, chemical, or waste (collectively, "Substance ") on the Premises that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. 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 Owner's Premises as long as the Substance was not introduced by Lessee, its employee's agents or contractors. Owner, its employees, agents or contractors shall not introduce any Substance in violation of any applicable federal, state, or local law or regulation to the 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 Premises, Lessee shall have the right to cancel this Lease immediately upon written notice to Owner and all prepaid rents shall be refunded to Lessee. 14. Assignment Lessee may not assign or sublet this Lease without the prior written consent of Owner except to any entity which controls, is controlled by, or is under the common control with Lessee, or to any entity resulting from any merger or consolidation with Lessee, or to any partner of Lessee, or to any partnership in which Lessee is a general partner, or to any person or entity which acquires all of the assets of Lessee as a going concern, or to any entity which obtains a security interest in a substantial portion of Lessee's assets. 15. Successors and Assigns This Lease shall run with the Premises described in Exhibit "A." At the time of execution Owner shall execute, acknowledge, and deliver to Lessee for recording a Memorandum of this Lease ( "Memorandum ") in such form as may reasonably be required by Lessee. This Lease shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, and assigns. Lessee may, at its sole option and expense, record such Memorandum in the Winnebago County Registry, and if Lessee does so, Lessee shall be solely responsible for drafting and recording any releases reasonably required by Owner at the termination of this Agreement to clear Owner's title to the Premises. 16. Miscellaneous a. Each party agrees to furnish to the other, within ten (10) days after request, such truthful estoppel information as the other may reasonably request. b. This Agreement constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Lease must be in writing and executed by both parties. c. This Agreement shall be construed in accordance with the laws of the State of Wisconsin. d. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. (Signature Page to follow.) IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. By: Its: Approved as to form: By: Lynn A. Lorenson Its: City Attorney CITY OF OSHKOSH, WISCONSIN Mark A. Rohloff City Manager By: Its: Pamela R. Ubrig City Clerk STATE OF WISCONSIN ) ) SS COUNTY OF WINNEBAGO ) Personally came before me this day of , 2012, 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 My commission: [SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE] -10- T- MOBILE CENTRAL, LLC, a Delaware limited liability company By: Jennifer Silveira Its: Vice President of Engineering STATE OF ) SS COUNTY OF } Personally came before me this day of , 2012, the above -named Jennifer Silveira, to me known to be the Vice President of Engineering of T- Mobile Central LLC, a Delaware limited liability company, and the person who executed the foregoing document and acknowledged the same. 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Box 1130 Oshkosh, WI 54902 -1130 Lessee: T- Mobile Central LLC, a Delaware limited liability company 12920 SE 38th Street Bellevue, WA 98006 Attn: Lease Compliance - Site Number ML94443 (Marion Road WT) Premises: The property described on Exhibit A attached. Rent: $1,900,00 per month; $22,800.00 to be paid annually during the Initial Term $2,300.00 per month; $27,600.00 per year (minimum) during the First Renewal Term $2,700.00 per month; $32,400.00 per year (minimum) during the Second Renewal Term A rem emend In consideration of the mutual promises, covenants and understanding set forth in this Agreement, and for other good and valuable consideration, the parties agree as follows: 1. Demise Subject to the terms and conditions of this Agreement, Owner leases to Lessee and Lessee leases from Owner the Premises together with a non- exclusive easement for the reasonable access to the Premises and to the appropriate, in Lessee's discretion, source of electric, telephone and data communications facilities. Access to the Premises is subject to all existing easements, covenants, conditions, and restrictions of record, if any, together with any restrictions arising from Owner's prior agreements with other lessees for use of the Premises, and is further subject to the site drawing described on Exhibit "A" attached hereto. 2. 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 Premises approved as an antenna site, including but not limited to governmental approvals for zoning variances, zoning applications and building permits. Owner agrees that an executed copy of this Agreement is as effective as the original, but, if requested by Lessee, Owner shall execute such other and further documents as may be required by the governmental entity in question to evidence Owner's consent to the action which is proposed to be taken. Owner shall provide reasonable cooperation and assistance to Lessee in obtaining all governmental approvals required by Lessee, with any expenses to be paid by Lessee. 3. Use. Lessee may use the 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 of related equipment in accordance with the provisions of this Lease. Lessee shall use the 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 Premises. Lessee will use the Premises in a manner which will not unreasonably disturb the occupancy of Owner or Owner's other lessees, if any. 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, 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 without Owner's approval which approvals shall not be unreasonably withheld, delayed or conditioned. The Antenna Facilities shall remain the exclusive property of Lessee. In addition, this Lease includes a ten foot by twenty foot (15' x 20') parcel on the ground at the Base of the Water Tower upon which Tenant will construct its Equipment Shelter as described below, together with an easement of appropriate width from the Water Tower to the Equipment Shelter, all in accordance with its site plan as approved by Owner. Lessee agrees to pay Owner's reasonable review, inspection, and administrative costs, estimated to be $6000.00, following Owner's submission of detailed invoices to Lessee. b. Lessee may update or replace the Antenna Facilities from time to time with the prior written approval of Owner, provided that the replacement facilities are not greater in size than the existing facilities and provided that their location on the leased portions of the tower is satisfactory to Owner. Lessee shall submit to Owner a proposal for any such replacement facilities, and for any supplemental materials as may be reasonably requested for Owner's evaluation and approval, which approval shall not be unreasonably withheld, delayed or conditioned. All costs for required structural studies will be paid by Lessee within 30 days of receipt of a detailed invoice. c. Lessee shall have the right at its sole cost and expense, to install, operate and maintain on the Premises the Antenna Facilities and other improvements described in this Lease, which improvements will include a structure to house Lessee's equipment ( "Equipment Shelter "). All such improvements shall be -2- constructed in accordance with Owner's specifications and according to a site plan approved by Owner. The Equipment Shelter and all equipment stored or operated therein, for the benefit of Lessee, shall remain the exclusive property of Lessee. All appropriate permits must be obtained prior to construction and use of the Equipment Shelter. Lessee acknowledges Owner's desire to have such equipment stored near the Water Tower facility and shall use its best efforts to accommodate Owner's desire. d. At all times during this Lease, Owner hereby grants to Lessee a nonexclusive easement for vehicular ingress, egress, and access over the Premises, which gives Lessee access to the Equipment Shelter and to the base of the Water Tower at no additional charge to Lessee. Additionally, at all times during this Lease, Owner hereby grants to Lessee a nonexclusive easement for the installation, maintenance, repair, upgrade and replacement of utility lines for electricity, telephone, data communications and /or other necessary utilities over, under and across the Property which provides Lessee utility service to the Premises and Equipment Shelter and to the base of the Water Tower at no additional charge to Lessee. All such utility lines installed by Tenant shall be at locations determined by Tenant and approved by Owner, in advance, which Owner approval shall not be unreasonably withheld, delayed or conditioned. e. Lessee, at all times during this Lease, shall have vehicular access to the Premises and the Equipment Shelter in order to install, operate and maintain its transmission facilities. f. Lessee shall separately meter charges for the consumption of electricity and any other utilities associated with its use of the Premises and shall pay all costs associated therewith. All utilities will be buried. g. Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personal property, Antenna Facilities, Equipment Shelter, and any other leasehold improvements, and shall keep the same in good repair and condition during the Lease term. h. Lessee must provide emergency contact information along with a list of all authorized service personnel including name address and phone number. This includes all contactors and subcontractors. This list must be kept up to date by lessee and submitted to the City's Director of Public Works at least annually or when any changes to authorized personnel occurs. Failure to provide this information will be grounds for termination of the contract. i. Lessee must submit a description of procedures used to check background of authorized personnel to minimize the potential of a security risk occurring due to access being provided to the site by the Owner, j. There will be no advertising on the Premises or on any structure on the Water Tower, the Equipment Shelter. -3- k. All antenna panels will be painted to match the color of the Water Tower. 1. The site will be landscaped according to plans approved by Owner. m. Any reasonable additional costs for servicing or maintaining the Water Tower that are due to the presence of the installation of the Antenna Facilities, the Equipment Shelter, or any other Lessee equipment, will be the responsibility of Lessee. n. A motion- sensitive security light will be installed on the Equipment Shelter, if constructed. o. Owner will notify Lessee at least ninety (90) days in advance of the date when the Water Tower is scheduled to be painted. The parties will 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 of painting the tower without the Antenna Facility. The contractor will then bid on the cost of 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. 4. Term The initial term of this Lease shall be five (5) years, commencing July 1, 2012 (the "Commencement Date ") through June 30, 2017. Lessee shall have the right to extend this Agreement for two additional five year terms, subject to the terms and conditions of this Agreement. This Agreement shall automatically be renewed for each successive renewal term unless Lessee notifies Owner of Lessee's intention not to renew the Lease at least six (6) months prior to the expiration of the initial or any renewal term. Thereafter, this Lease may be renewed upon such terms and conditions as the parties may then agree provided that Lessee shall notify Owner of its intention to renew this lease at least six (6) months prior to the expiration of third, five -year term. 5. Rent For the initial term of this Lease, Lessee shall pay Rent to Owner as shown above in annual payments, payable on the Commencement Date and on the anniversary of the Commencement Date thereof. The annual rent for each renewal term shall be (a) adjusted by a factor equal to the change in Cost of Living (CPI -U, as measured in the Milwaukee Metropolitan Area by the Bureau of Labor Statistics or successor federal agency) since the beginning of the immediately preceding five - year term and the commencement date of the applicable renewal term, or (b) adjusted in accordance with the minimum increase shown above, whichever is -4- greater. In the event this Lease is terminated by Owner under Section 11(d) below, all prepaid rents will be refunded to Lessee. In the event this Lease is terminated by Lessee under Sections 11(a), 11(b) or 11(c), Lessee shall be entitled to reimbursement of all prepaid rent prorated to the date of termination. 6. Reasonable Approval Both parties shall not unreasonably withhold, delay or condition any approvals required under this Lease. 7. Interference a. Lessee's installation, operation, and use of its transmission facilities under this Lease shall not damage or interfere in any way with Owner's Water Tower operations or related repair and maintenance activities. Owner, at all times during this Lease, reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the 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 Lessee to carry out such activities with a minimum amount of Interference with Lessee's transmission operations. b. 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 of additional antenna or transmission facility on the Water Tower or the Premises after Lessee, this paragraph will govern the determination of 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. Any dispute between Owner and Lessee regarding the proposed additional installation and its potential for interference with Lessee's transmission operations shall be resolved by submitting the issue for decision to an independent third party mutually agreed upon by Owner and Lessee, whose decision regarding interference shall be binding on both parties hereto and whose expense shall be borne equally by Lessee and the party requesting such permission. c. 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 of the FCC. Lessee warrants that it shall maintain all of its Antenna Facilities in full compliance with all applicable regulations of the FCC and other governing bodies. Lessee will be responsible for resolving any intermodulation problems -5- with other users of the Water Tower and underlying property, should they occur due to the equipment installed and operated by Lessee. 8. Termination Except as otherwise provided herein, this Lease may be terminated by either party upon thirty (30) days written notice to the other party as contained in this Paragraph. Upon termination of this Lease for any reason, Lessee shall remove all of its equipment, personal property, Antenna Facilities, structure and leasehold improvements from the Water Tower and the Premises within ninety (90) days after the date of termination, and shall restore the Water Tower and the Premises to the condition it was in on the Commencement Date, ordinary wear and tear excepted, all at Lessee's sole cost and expense. Any such personal property which is not removed by end of said ninety (90) day period shall become the property of Owner. a. By 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 of 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; b. By Lessee, if it is unable to obtain or maintain any license, permit, or other governmental approval necessary for the construction and /or operation of the transmission facilities or Lessee' business; c. By Lessee, if the 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, if the Water Tower is destroyed, dismantled or removed, or if the 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 of the structure, damage or destruction of all or part of the Water Tower or the underlying property from any source, or factors relating to condition of the Premises in which event Lessee shall have the right to erect and maintain temporary communications facilities on the Premises at a location as close as reasonably possible to the location of the Water Tower for a period of up to one (1) year at the then current rental rate for the purpose of continuing to provide service to the community while Lessee seeks to permit another site. In the event Lessee elects to terminate the Lease, Lessee shall be entitled to reimbursement of any prepaid rent prorated to the date of termination. e. By Lessee, if the 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 of any prepaid rent prorated to the date of termination. 9. Insurance a. Lessee shall maintain, at its sole cost during the term of this Agreement, commercial general liability insurance insuring Lessee and Owner against liability for personal injury, death or damage to personal Premises arising out of the use of the Site by Lessee. Such insurance shall provide coverage in an amount not less than One Million Dollars ($1,000,000.00) for bodily injury or death to one or more persons and in an amount if not less than One Million Dollars ($1,000,000.00) for Premises damage. 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 Premises arising out of its ownership, use and management of the Owner's Premises by Owner or its agents, with combined single limits of not less than One Million Dollars ($1,000,000.00). c. Notwithstanding anything in this Agreement to the contrary, each parry releases the other party from all liability, whether for negligence or otherwise, in connection with a loss covered by any policy(s) which the releasing parry carries with respect to the Premises or personal property located upon the premises, but only to the extent that such loss is collected under such insurance policy(s). Any policy required to be obtained pursuant to this Section shall contain a Waiver of Subrogation in favor of the other party hereto. 10. Condemnation In the event the whole of the Premises is taken by eminent domain, this Lease shall terminate as of the date title to the Premises vests in the condemning authority. In the event a portion of the Premises is taken by eminent domain, either parry shall have the right to terminate this Lease as of said date of title transfer, by giving thirty (30) days written notice to the other parry. In the event of any taking under the power of eminent domain, Lessee shall not be entitled to any portion at the award paid for the taking and Owner shall receive the full amount of 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 of the leasehold or the fee of the 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, personal Premises, Antenna Facilities and leasehold improvements. Owner will refund all prepaid rents on the date title to the Premises vests in the condemning authority or on the date of termination in the event a portion of the Premises is taken by the condemning authority and this Lease is terminated. -7- 11. Indemnification Except for the negligent acts, willful misconduct or other fault of Owner's elected officials, officers, employees, agents and representatives, 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, or causes of action, including reasonable attorneys' fees and other costs and expenses of 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 Premises and the Water Tower. Subject to any limitations contained in Sec. 893.80 and any similar statute, of the Wisconsin Statutes, the 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 Agreement where such liability is founded upon or grows out of the acts or omissions of any of the 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 solely responsible for its own acts, actions and activities under this Agreement, including Lessee's Authorized Parties and further, to achieve said purpose, that this paragraph be liberally construed in favor of the party seeking indemnification. 12. 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. 13. Representations and Warranties Owner warrants that: (1) it has full right, power, and authority to execute this Lease; and (2) to the best of its knowledge, it has good and unencumbered title to the Premises free and clear 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 Premises during the term of this Lease in accordance with its terms. a. Owner warrants that it has no knowledge of any substance, chemical, or waste (collectively, "Substance ") on the Premises that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. 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 Owner's Premises as long as the Substance was not introduced by Lessee, its employee's agents or contractors. Owner, its employees, agents or contractors shall not introduce any Substance in violation of any applicable federal, state, or local law or regulation to the 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 Premises, Lessee shall have the right to cancel this Lease immediately upon written notice to Owner and all prepaid rents shall be refunded to Lessee. 14. Assignment Lessee may not assign or sublet this Lease without the prior written consent of Owner except to any entity which controls, is controlled by, or is under the common control with Lessee, or to any entity resulting from any merger or consolidation with Lessee, or to any partner of Lessee, or to any partnership in which Lessee is a general partner, or to any person or entity which acquires all of the assets of Lessee as a going concern, or to any entity which obtains a security interest in a substantial portion of Lessee's assets. 15. Successors and Assigns This Lease shall run with the Premises described in Exhibit "A." At the time of execution Owner shall execute, acknowledge, and deliver to Lessee for recording a Memorandum of this Lease ( "Memorandum ") in such form as may reasonably be required by Lessee. This Lease shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, and assigns. Lessee may, at its sole option and expense, record such Memorandum in the Winnebago County Registry, and if Lessee does so, Lessee shall be solely responsible for drafting and recording any releases reasonably required by Owner at the termination of this Agreement to clear Owner's title to the Premises. 16. Miscellaneous a. Each party agrees to furnish to the other, within ten (10) days after request, such truthful estoppel information as the other may reasonably request. b. This Agreement constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Lease must be in writing and executed by both parties. c. This Agreement shall be construed in accordance with the laws of the State of Wisconsin. d. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. (Signature Page to follow.) IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. Its CITY OF OSHKOSH, WISCONSIN By: Mark A. Rohloff Its: City Manager Pamela R. Ubrig City Clerk Approved as to form: Lynn A. Lorenson Its: City Attorney STATE OF WISCONSIN ) ) SS COUNTY OF WINNEBAGO ) Personally came before me this day of , 2012, 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 My commission: [SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE] -10- T- MOBILE CENTRAL, LLC, a Delaware limited liability company By: Jennifer Silveira Its: Vice President of Engineering STATE OF ) SS COUNTY OF ) Personally came before me this day of , 2012, the above -named Jennifer Silveira, to me known to be the Vice President of Engineering of T- Mobile Central LLC, a Delaware limited liability company, and the person who executed the foregoing document and acknowledged the same. 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PROPOSER 10 WIDE uru.TrypA5ffi.IENT A P.1 ofLds 23 and 24 nfthe Plat of Weston Addition,, Oxhkoeb Jo.,tW W g,. goal..., Qaar4:c (SRI/q) of the NaMeaBt Qaartcr (NE114) of SeGion Tbrenty -T6tec (23), Township Eightms (18) Nacdy It-V Soot— (16) F.A Cif, &Oahkmh, Wo8�a90 f °ant. W'BCwn, w>Malning 1,07k aqume fta (0 Q23 atyny) of teed aad belay Frve (5) fact aieh e;do .ad pamgd to the fnllamiag deectlbed liac CnmawacinA a lhcF "Quota Cmsorafnid Settioo 23:t4oce MW- 15 -33"w 152RO fectilong the Pns[ImeoFthe NEI14 ofseid S=L km 23: thence 987-44 27 652.09 fett theam hZ6°-26' -3S" W 20.OD feG Ihcmm N63m- 11Y -25"W 10.49 fete W Ote poWt ofbcgmn;ng tim t 524 ° - 37° - 58"w 48.43 fcct m. paid baeiq after mRmd to q Paint "A'; theeee mdinuiog S24 ° - 37' - 58 "yp 23.19feet wthepaid ofhxtn'nmtioa AWbegumiogw NMPoint "A ";ll n 952° - 54'47"x; 31.00 fxe toll, point afum i..tk- - LEGEND— ° = I" % 19" )RON PIPE SET ® CATCH BASIN • = 1" IRON PIPE FOUND dB = GAS VALVE MASONRY NAIL SET Eb CAS METER �m v 6" NAIL SET ® =METAL POST {� = COUNTY MONUMENT FOUND G = WOCD POST cZ s = EYJnNG POWER POLE ® = TEST WELL i i`i m - ELECTRIC TRANSFORMER O = CONDUIT -C- BURIED WATERMAIN 17 = TELEPHONE PEDESTAL -SAN- = SANETARY SEWER 0 - UGHT POLE -G- - BURIED GAS 'Q' - FlRE HYDRANT -E- = BURIED ELECTRIC s 0 - WATER VALVE -T- = BUR[EA TELEPHONE s "can G - MANHOLE ­ PROPERTY LINE �F WELL HEAD - EYJS71NG TREE alSCnitSfi REGIsTmat ANo St.RweY 13m�ai C.umt�,g,7tat 11'x17 " -4 "= 10 ze x34 " -i ' - 5' 1ecPaih dmn>'dElwaaakarrin a lmdp[vi�a aesdt mn.ad.k db/F'N&o, fm ,DR, SAM PSCERDFICATE t, 9.m Gawc4.w m„taydti,aaFxdSts.elu du iaitasw +W74,LlF,mitiy0�lhee.'r�elcdan .amaa GRAPHIC SCALE SITE NAME: 19 a P 10 069 TW 20 SITE td1MBEF th9daS drya .ldlz hi9a443 WATER TOWER/LAND LEASE AGREEMENT Date: June 13, 2012 Owner: City of Oshkosh ATTN: City Manager 215 Church Ave. P.O. Box 1130 Oshkosh, W154902 -1130 Lessee: T- Mobile Central LLC, a Delaware limited liability company 12920 SE 38th Street Bellevue, WA 98006 Attn: Lease Compliance - Site Number ML94426 (shorter barrel water tank off County Road N) Premises: The property described on Exhibit A attached. Rent: $1,900.00 per month; $22,800.00 to be paid annually during the Initial Term $2,300.00 per month; $27,600.00 per year (minimum) during the First Renewal Term $2,700.00 per month; $32,400.00 per year (minimum) during the Second Renewal Term Agreem In consideration of the mutual promises, covenants and understanding set forth in this Agreement, and for other good and valuable consideration, the parties agree as follows: 1. Demise Subject to the terms and conditions of this Agreement, Owner leases to Lessee and Lessee leases from Owner the Premises together with a non - exclusive easement for the reasonable access to the Premises and to the appropriate, in Lessee's discretion, source of electric, telephone and data communications facilities. Access to the Premises is subject to all existing easements, covenants, conditions, and restrictions of record, if any, together with any restrictions arising from Owner's prior agreements with other lessees for use of the Premises, and is further subject to the site drawing described on Exhibit "A" attached hereto. 2. 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 Premises approved as an antenna site, including but not limited to governmental approvals for zoning variances, zoning applications and building permits. Owner agrees that an executed copy of this Agreement is as effective as the original, but, if requested by Lessee, Owner shall execute such other and further -1- documents as may be required by the governmental entity in question to evidence Owner's consent to the action which is proposed to be taken. Owner shall provide reasonable cooperation and assistance to Lessee in obtaining all governmental approvals required by Lessee, with any expenses to be paid by Lessee. 3. Use. Lessee may use the 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 of related equipment in accordance with the provisions of this Lease. Lessee shall use the 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 Premises. Lessee will use the Premises in a manner which will not unreasonably disturb the occupancy of Owner or Owner's other lessees, if any. 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, 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 without Owner's approval which approvals shall not be unreasonably withheld, delayed or conditioned. The Antenna Facilities shall remain the exclusive property of Lessee. In addition, this Lease includes a ten foot by twenty foot (14' x 20') parcel on the ground at the Base of the Water Tower upon which Tenant will construct its Equipment Shelter as described below, together with an easement of appropriate width from the Water Tower to the Equipment Shelter, all in accordance with its site plan as approved by Owner. Lessee agrees to pay Owner's reasonable review, inspection, and administrative costs, estimated to be $ 6000.00, following Owner's submission of detailed invoices to Lessee. b. Lessee may update or replace the Antenna Facilities from time to time with the prior written approval of Owner, provided that the replacement facilities are not greater in size than the existing facilities and provided that their location on the leased portions of the tower is satisfactory to Owner. Lessee shall submit to Owner a proposal for any such replacement facilities, and for any supplemental materials as may be reasonably requested for Owner's evaluation and approval, which approval shall not be unreasonably withheld, delayed or conditioned. All costs for required structural studies will be paid by Lessee within 30 days of receipt of a detailed invoice. c. Lessee shall have the right at its sole cost and expense, to install, operate and maintain on the Premises the Antenna Facilities and other improvements described in this Lease, which improvements will include a structure to house Lessee's equipment ( "Equipment Shelter "). All such improvements shall be -2- constructed in accordance with Owner's specifications and according to a site plan approved by Owner. The Equipment Shelter and all equipment stored or operated therein, for the benefit of Lessee, shall remain the exclusive property of Lessee. All appropriate permits must be obtained prior to construction and use of the Equipment Shelter. Lessee acknowledges Owner's desire to have such equipment stored near the Water Tower facility and shall use its best efforts to accommodate Owner's desire. d. At all times during this Lease, Owner hereby grants to Lessee a nonexclusive easement for vehicular ingress, egress, and access over the Premises, which gives Lessee access to the Equipment Shelter and to the base of the Water Tower at no additional charge to Lessee. Additionally, at all times during this Lease, Owner hereby grants to Lessee a nonexclusive easement for the installation, maintenance, repair, upgrade and replacement of utility lines for electricity, telephone, data communications and /or other necessary utilities over, under and across the Property which provides Lessee utility service to the Premises and Equipment Shelter and to the base of the Water Tower at no additional charge to Lessee. All such utility lines installed by Tenant shall be at locations determined by Tenant and approved by Owner, in advance, which Owner approval shall not be unreasonably withheld, delayed or conditioned. e. Lessee, at all times during this Lease, shall have vehicular access to the Premises and the Equipment Shelter in order to install, operate and maintain its transmission facilities. f. Lessee shall separately meter charges for the consumption of electricity and any other utilities associated with its use of the Premises and shall pay all costs associated therewith. All utilities will be buried. g. Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personal property, Antenna Facilities, Equipment Shelter, and any other leasehold improvements, and shall keep the same in good repair and condition during the Lease term. h. Lessee must provide emergency contact information along with a list of all authorized service personnel including name address and phone number. This includes all contactors and subcontractors. This list must be kept up to date by lessee and submitted to the City's Director of Public Works at least annually or when any changes to authorized personnel occurs. Failure to provide this information will be grounds for termination of the contract. i. Lessee must submit a description of procedures used to check background of authorized personnel to minimize the potential of a security risk occurring due to access being provided to the site by the Owner. j. There will be no advertising on the Premises or on any structure on the Water Tower, the Equipment Shelter. - 3 - k. All antenna panels will be painted to match the color of the Water Tower. 1. The site will be landscaped according to plans approved by Owner. m. Any reasonable additional costs for servicing or maintaining the Water Tower that are due to the presence of the installation of the Antenna Facilities, the Equipment Shelter, or any other Lessee equipment, will be the responsibility of Lessee. n. A motion - sensitive security light will be installed on the Equipment Shelter, if constructed. o. Owner will notify Lessee at least ninety (90) days in advance of the date when the Water Tower is scheduled to be painted. The parties will 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 of painting the tower without the Antenna Facility. The contractor will then bid on the cost of 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. 4. Term The initial term of this Lease shall be five (5) years, commencing July 1, 2012 (the "Commencement Date ") through June 30, 2017. Lessee shall have the right to extend this Agreement for two additional five year terms, subject to the terms and conditions of this Agreement. This Agreement shall automatically be renewed for each successive renewal term unless Lessee notifies Owner of Lessee's intention not to renew the Lease at least six (6) months prior to the expiration of the initial or any renewal term. Thereafter, this Lease may be renewed upon such terms and conditions as the parties may then agree provided that Lessee shall notify Owner of its intention to renew this lease at least six (6) months prior to the expiration of third, five -year term. 5. Rent For the initial term of this Lease, Lessee shall pay Rent to Owner as shown above in annual payments, payable on the Commencement Date and on the anniversary of the Commencement Date thereof. The annual rent for each renewal term shall be (a) adjusted by a factor equal to the change in Cost of Living (CPI -U, as measured in the Milwaukee Metropolitan Area by the Bureau of Labor Statistics or successor federal agency) since the beginning of the immediately preceding five - year term and the commencement date of the applicable renewal term, or (b) adjusted in accordance with the minimum increase shown above, whichever is greater. In the event this Lease is terminated by Owner under Section I I(d) below, all prepaid rents will be refunded to Lessee. In the event this Lease is terminated by Lessee under Sections 11(a), 11(b) or 11(c), Lessee shall be entitled to reimbursement of all prepaid rent prorated to the date of termination. 6. Reasonable Approval. Both parties shall not unreasonably withhold, delay or condition any approvals required under this Lease. 7. Interference a. Lessee's installation, operation, and use of its transmission facilities under this Lease shall not damage or interfere in any way with Owner's Water Tower operations or related repair and maintenance activities. Owner, at all times during this Lease, reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the 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 Lessee to carry out such activities with a minimum amount of Interference with Lessee's transmission operations. b. 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 of additional antenna or transmission facility on the Water Tower or the Premises after Lessee, this paragraph will govern the determination of 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. Any dispute between Owner and Lessee regarding the proposed additional installation and its potential for interference with Lessee's transmission operations shall be resolved by submitting the issue for decision to an independent third party mutually agreed upon by Owner and Lessee, whose decision regarding interference shall be binding on both parties hereto and whose expense shall be borne equally by Lessee and the parry requesting such permission. c. 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 of the FCC. Lessee warrants that it shall maintain all of its Antenna Facilities in full compliance with all applicable regulations of the FCC and other governing bodies. Lessee will be responsible for resolving any intermodulation problems -5- with other users of the Water Tower and underlying property, should they occur due to the equipment installed and operated by Lessee. 8. Termination Except as otherwise provided herein, this Lease may be terminated by either party upon thirty (30) days written notice to the other party as contained in this Paragraph. Upon termination of this Lease for any reason, Lessee shall remove all of its equipment, personal property, Antenna Facilities, structure and leasehold improvements from the Water Tower and the Premises within ninety (90) days after the date of termination, and shall restore the Water Tower and the Premises to the condition it was in on the Commencement Date, ordinary wear and tear excepted, all at Lessee's sole cost and expense. Any such personal property which is not removed by end of said ninety (90) day period shall become the property of Owner. a. By 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 of 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; b. By Lessee, if it is unable to obtain or maintain any license, permit, or other governmental approval necessary for the construction and /or operation of the transmission facilities or Lessee' business; c. By Lessee, if the 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, if the Water Tower is destroyed, dismantled or removed, or if the 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 of the structure, damage or destruction of all or part of the Water Tower or the underlying property from any source, or factors relating to condition of the Premises in which event Lessee shall have the right to erect and maintain temporary communications facilities on the Premises at a location as close as reasonably possible to the location of the Water Tower for a period of up to one (1) year at the then current rental rate for the purpose of continuing to provide service to the community while Lessee seeks to permit another site. In the event Lessee elects to terminate the Lease, Lessee shall be entitled to reimbursement of any prepaid rent prorated to the date of termination. e. By Lessee, if the 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 of any prepaid rent prorated to the date of termination. 9M 9, Insurance a. Lessee shall maintain, at its sole cost during the term of this Agreement, commercial general liability insurance insuring Lessee and Owner against liability for personal injury, death or damage to personal Premises arising out of the use of the Site by Lessee. Such insurance shall provide coverage in an amount not less than One Million Dollars ($1,000,000.00) for bodily injury or death to one or more persons and in an amount if not less than One Million Dollars ($1,000,000.00) for Premises damage. 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 Premises arising out of its ownership, use and management of the Owner's Premises by Owner or its agents, with combined single limits of not less than One Million Dollars ($1,000,000.00). c. Notwithstanding anything in this Agreement to the contrary, each parry releases the other party from all liability, whether for negligence or otherwise, in connection with a loss covered by any policy(s) which the releasing party carries with respect to the Premises or personal property located upon the premises, but only to the extent that such loss is collected under such insurance policy(s). Any policy required to be obtained pursuant to this Section shall contain a Waiver of Subrogatioh in favor of the other parry hereto. 10. Condemnation In the event the whole of the Premises is taken by eminent domain, this Lease shall terminate as of the date title to the Premises vests in the condemning authority. In the event a portion of the Premises is taken by eminent domain, either party shall have the right to terminate this Lease as of said date of title transfer, by giving thirty (30) days written notice to the other party. In the event of any taking under the power of eminent domain, Lessee shall not be entitled to any portion at the award paid for the taking and Owner shall receive the full amount of 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 of the leasehold or the fee of the 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, personal Premises, Antenna Facilities and leasehold improvements. Owner will refund all prepaid rents on the date title to the Premises vests in the condemning authority or on the date of termination in the event a portion of the Premises is taken by the condemning authority and this Lease is terminated. -7- 11. Indemnification Except for the negligent acts, willful misconduct or other fault of Owner's elected officials, officers, employees, agents and representatives, 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, or causes of action, including reasonable attorneys' fees and other costs and expenses of 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 Premises and the Water Tower. Subject to any limitations contained in Sec. 893.80 and any similar statute, of the Wisconsin Statutes, the 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 Agreement where such liability is founded upon or grows out of the acts or omissions of any of the 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 solely responsible for its own acts, actions and activities under this Agreement, including Lessee's Authorized Parties and further, to achieve said purpose, that this paragraph be liberally construed in favor of the party seeking indemnification. 12. 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. 13. Representations and Warranties Owner warrants that: (1) it has full right, power, and authority to execute this Lease; and (2) to the best of its knowledge, it has good and unencumbered title to the Premises free and clear 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 Premises during the term of this Lease in accordance with its terms. a. Owner warrants that it has no knowledge of any substance, chemical, or waste (collectively, "Substance ") on the Premises that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. 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 Owner's Premises as long as the Substance was not introduced by Lessee, its employee's agents or contractors. Owner, its employees, agents or contractors shall not introduce any Substance in violation of any applicable federal, state, or local law or regulation to the 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 Premises, Lessee shall have the right to cancel this Lease immediately upon written notice to Owner and all prepaid rents shall be refunded to Lessee. 14, Assignment Lessee may not assign or sublet this Lease without the prior written consent of Owner except to any entity which controls, is controlled by, or is under the common control with Lessee, or to any entity resulting from any merger or consolidation with Lessee, or to any partner of Lessee, or to any partnership in which Lessee is a general partner, or to any person or entity which acquires all of the assets of Lessee as a going concern, or to any entity which obtains a security interest in a substantial portion of Lessee's assets. 15. Successors and Assigns. This Lease shall run with the Premises described in Exhibit "A." At the time of execution Owner shall execute, acknowledge, and deliver to Lessee for recording a Memorandum of this Lease ( "Memorandum ") in such form as may reasonably be required by Lessee. This Lease shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, and assigns. Lessee may, at its sole option and expense, record such Memorandum in the Winnebago County Registry, and if Lessee does so, Lessee shall be solely responsible for drafting and recording any releases reasonably required by Owner at the termination of this Agreement to clear Owner's title to the Premises. 16. Miscellaneous a. Each parry agrees to furnish to the other, within ten (10) days after request, such truthful estoppel information as the other may reasonably request. b. This Agreement constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Lease must be in writing and executed by both parties. c. This Agreement shall be construed in accordance with the laws of the State of Wisconsin. d. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. (Signature Page to follow.) IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. L Approved as to form: By: Lynn A. Lorenson Its: City Attorney STATE OF WISCONSIN ) ) SS COUNTY OF WINNEBAGO ) CITY OF OSHKOSH, WISCONSIN Mark A. Rohloff City Manager Its: By: Pamela R. Ubrig Its: City Clerk Personally came before me this day of , 2012, 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 My commission: [SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE] S[i10 T- MOBILE CENTRAL, LLC, a Delaware limited liability company By: Jennifer Silveira Its: Vice President of Engineering STATE OF } SS COUNTY OF ) Personally came before me this day of , 2012, the above -named Jennifer Silveira, to me known to be the Vice President of Engineering of T- Mobile Central LLC, a Delaware limited liability company, and the person who executed the foregoing document and acknowledged the same. 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(Ra datvi, u5'r' 78' an"T..) 11 4,9 lt,; a1w351hc SuE:I+aaslacFy One "U' PARLEL YS'' ., r 5JR'+EY£[RxGER'FCA1F ` GNS/ � /,fi •' gyp ^\ .... .....'Y h - � - " - f� -. UL vRrnaeEO sn• ufoE llflt.lTV V�WFWT •A' H r h j( f qa . - T i ` vi��S� l 1-v ing yl lna Sc-U: must Culen -fl I n wid C S:M "ta. 2677; Q. -c N39•+ U 1 "a. (Ra datvi, u5'r' 78' an"T..) 11 4,9 lt,; a1w351hc SuE:I+aaslacFy One "U' PARLEL YS'' ., r 5JR'+EY£[RxGER'FCA1F ` GNS/ � /,fi •' gyp ^\ .... .....'Y s+astry.3ltlw aerrrt�aw; genE�era >ra€.k ;,. ;svnkrdair.5m to amid �ay um,4ad ?c and lcG,' - S � , y(1Ta`3 .lk {SyS 2. - ` � .- . r:,ir,���i� •'- GNn95 f PWUECSEO CP' -a ,� t Ur 1L EASEW L ITY fNT '0' . 6 0 + WATER VAI VF , 'Cf ; ;RE Hv�!RAN: MANHOLE a a Ss = METAi, POST i' // = }'15T17JG ?C'wE'R Pfil.E - - -[nGl PF e €RC - .-� EXISTING GUY AP4CH(Nt Ouze €fPr, i . : - SlawrtG 6x�4Ml.h etr:aN}e+¢:IUasd : a ua it.. 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U.X.T A. gan u(I.. },sf'(.vnlifictl S,trruy Map tiu. 207 uFdshkedx C.mly Reu6,s 1 I.-d ISW1P4l a13J ih i, auatQa:n,;;(IJ{41:- IIuCNe Suu:hwetf,Icsner ua it.. SPaw lQ-ter(Sii'l: A) P`!te5,w11:•xesr Ouanct l5Nlr1)ofYx!ian Sic:,':.n(l6i,Tn,.m�ip fievmtcen (171 N:xdy!tag:. ,y fk6Y t t I' -�f he3u WimwL':yI CMR,fy -Wr - u!:li:sircd 3, 7a2 wwsrc kt:f iflfX+G acn-,F vF3aa:inu,I heing 7.5 feet c: hAdk lanl lull ng descnh b lice pa•. 1-v ing yl lna Sc-U: must Culen -fl I n wid C S:M "ta. 2677; Q. -c N39•+ U 1 "a. (Ra datvi, u5'r' 78' an"T..) 11 4,9 lt,; a1w351hc SuE:I+aaslacFy One "U' nF savl Lw i; Ihmr rh€3F<• _1(,! :g a3.Sf Ece., livh. r..- tiS9 °- 1-7' -3Y'L• vt.1H} }ces; l,ura:e 53O°SG' -?8'T; 7.561ict w lta.puipt aPhcp:nai �; Iluxe 4_9u 5.3' J2 V SI "W 31 F [, akazrx NJd°.35• -lii 55.$3 feel; L 1 153'- S2'46"W 29 3i {nci' rk Rl arwny 1 t1, "N ",vJ 'c At3 +• �'i ]7 "Lb 91-.19 Cull u: a pirf as »lc SaKh¢-}y gki -TlI. Its Rnln! of Ia7tlrrsn!i,w. t'Le x2rR: e<u 7iva; .:fx id casear<6 Rigi3t of%V•au i1 Fi T li. "N" are w h shanwrd or Iw>RS7zevJ 4: trnniesc 9n W_ SneahcrFp -LEGEND- I' X 7H' IRON PIPE SF o n 5" NAfL SE () = ft ,C7ROED INFORmAiTCN ELEU'MIC METER 3x a = IELO -HONE PEnCSIAL 0 + WATER VAI VF 7>r9 'Cf ; ;RE Hv�!RAN: MANHOLE a a Ss = METAi, POST = }'15T17JG ?C'wE'R Pfil.E x IsFrE TABLE - .-� EXISTING GUY AP4CH(Nt Ouze €fPr, f� = OOR 0 =: WATER MAMMA E W3p'S62B "N 54.96' -- .:+ BuRiEn 'HATER MAIN _LI -1/£- = BU R CO I'[ E­ do <E:tF, L2 U4!HS': E 20 w - S - - BURIED 71:iE -MiF OVLRff£h0 x3 L3 . 54.x0' ELECTRIC PROPERTY L4 swo"12"'w 20 ow q®' °° EICISIIN+T CET3AN TREE