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HomeMy WebLinkAbout04. 18-505 OCTOBER 9, 2018 18-505 RESOLUTION (CARRIED 6-0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE AGREEMENT WITH T-MOBILE FOR CELLULAR ANTENNA INSTALLATION ON NEW MARION ROAD WATER TOWER (+$27,600.00 annual payment to City) INITIATED BY: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 and take those steps necessary to implement a lease agreement with T-Mobile for Cellular Antenna Installation on the new Marion Road Water Tower in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their signatures. City of� Oshkosh MEMORANDUM TO: Honorable Mayor and Members of the Common Council FROM: Stephan M. Brand, Public Works Utility Bureau Manager --J-A QI-U DATE: October 4, 2018 RE: Approve Agreement with T -Mobile 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, T -Mobile 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a new agreement was required to include changes for how the installation will be done on the new tower and address outdated agreement language in the previous agreement with T -Mobile. The City is also currently working on a similar 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 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 will provide the Water Utility with a revenue source of $27,600 per year (with an additional annual amount of $6,000 for rental of the equipment building for the first nine (9) years of the lease) for the first term, with increases as noted should the lease agreement be extended. RECOMMENDATIONS I recommend approval of this lease agreement with T -Mobile for this installation. Approved: Mark A. Rohloff City Manager SNO/tit L\ Engineering \ Tracy Taylor\ Memos to Mayor & Common Council \2018 \ T -Mobile -Cell Antenna Lease Agreement -Marion Rd Wtr Twr_10-4-18.docx Page 1 of 1 liilrlYQ1,' 11AVX!'AWA I �X311, WT-M940IMe Date: 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 ML94443B (Marion Rd. WT) City Parcel: The City owns a parcel upon which a municipal water tower is located. T -Mobile Central 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 -owned parcel within which the Leased Premises will be located is attached as Exhibit A. Leased Premises: That part of the City Parcel which T -Mobile Central will lease for the purposes described in this Lease Agreement. A map of the Leased Premises is attached as Exhibit B. Rent: $ 2,300.00* per month; $27,600 per year during the Initial Term $ 2,700.00* per month; $32,400 per year during the First Renewal Term $ 3,100.00 per month; $37,200 per year during the Second Renewal Term Plus an additional monthly rental fee of $500.00 for the first nine (9) years that this Lease 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 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 fee, through August 30, 2018. Lessee shall submit a lump sum payment for monthly equipment building rental from November 1, 2017 through the date this Agreement is executed. Agreement The City of Oshkosh and T -Mobile Central agree to enter into this Lease Agreement in consideration of the mutual promises, covenants and understanding set forth in this Lease -1- Oshkosh ML94443B � July 9, 2018 ,m ML94443B Agreement, and for other good and valuable consideration. The parties, on April 25, 2018, entered into an Agreement for the Temporary Location of Antenna Facilities related to the same subject matter as this Lease. Upon the execution of this Lease by both parties, the aforementioned Temporary Agreement shall be terminated. The specific terms and conditions of this Lease Agreement are as follows: I .Pur ose. The City of Oshkosh (Owner) owns a parcel upon which it constructed and operates a Water Tower that is part of its municipal water distribution system. T -Mobile (Lessee) provides cellular and other communications services within the Oshkosh market and seeks to locate its facilities on the City's 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. The Owner agrees to lease to Lessee, and the Lessee leases 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 of this Lease are: 1) the Lessee's ability to place its antennae and related facilities on the Owner's Water Tower; 2) the Lessee's ability to place its equipment in a specially installed building at or near the base of the Water Tower; 3) the 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. The Owner is making this space available for one or more users that may wish to utilize this space upon approval of the Owner. Subject to FCC and FAA rules, and the other terms of this and similar agreements, it is expected that all users of the space will cooperate. The date of execution of any particular lease agreement shall not in and of itself be dispositive of rights and obligations. To that end, Lessee's lease rights are subject to 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 Leased Premises and the Owner's Property. The specific, final, location of Lessee's facilities shall be in a location approved by the 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 Premises approved as an antenna site so that it may carry out its core business functions. Lessee's applications may include, but are not 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 Premise or the non- exclusive easement. The 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 -2- Oshkosh ML94443B July 9, 2018 ML94443 B law, rule, or regulation. Owner agrees to advise Lessee in advance of its position on any of Lessee's application. 4. Use. Lessee leases the Leased Premises for its equipment, personal property, and improvements associated with Tenants' wireless communications business ("Antenna Facilities"). Lessee may use the Leased Premises for the installation, operation, maintenance, repair, replacement, upgrade, and eventual removal of the Antenna 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 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 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 the Owner, if other Lessee's exist. a. Lessee shall have the right, at its sole cost and expense, to install, operate and maintain the Antenna 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, and within the equipment shelter or building, as detailed in subsection b., below, 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 remain the exclusive property of Lessee. b. The Owner will provide the Lessee with exclusive use of an equipment building near the base of the Water Tower. The Owner will provide a building that is appropriate for Lessee's intended use after consultation with the Lessee. The Owner shall be responsible for maintaining the equipment building. The Lessee shall have exclusive access to the interior of the building, although the Owner shall have the right as the landlord to access the interior for any lawful purpose. Except for emergencies, Lessor shall provide Lessee with written notice at least ten (10) days prior to accessing the interior of the building. 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. In the event that this Lease Agreement is terminated for any reason before the first nine (9) years have 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 -3- Oshkosh ML94443B July 9, 2018 ML94443B purpose of use of the equipment building shall not reflect or convey any ownership interest in the building. c. The 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 the approval of the 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. d. 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 or density than the existing facilities and provided that their location on the Leased Premises is approved by the Owner. Lessee shall submit to Owner a proposal for updated or replacement facilities, as well as any related supplemental materials that are requested by the 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 the Owner's discretion will be paid by Lessee within 30 days of receipt of a detailed invoice. e. At all times during the term of this Lease, the 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, including 24/7 access in cases of emergencies. 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 term. Owner shall maintain the Property, Tower and Building, in good condition and state of repair, exclusive of Lessee's Antenna Facilities and Owner shall Comply with all applicable laws and governmental regulations. h. Lessee shall provide the Owner with its 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 -4- Oshkosh ML94443B July 9, 2018 ML94443B this information will be considered a material breach and may be grounds for termination of the Lease Agreement at the discretion of the Owner, if not cured by Tenant within ten (10) days written notice by Lessor. 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. 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 the Owner in advance of their installation. k. All antenna panels will be painted to match the color of the Water Tower. 1. Lessee shall not install any fencing of 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 are caused in whole or in part from the presence of the Lessee's use of the Leased Premises shall be reimbursed to the Owner by the Lessee. If Lessee's presence within the Leased Premises is only partially responsible for additional costs, then Lessee shall only be responsible for the proportional extent they are the cause of 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 at least ninety (90) days in advance of the date when the Water Tower is scheduled to be painted or other maintenance performed. The parties will cooperate to determine which of the following two options will be used to address the impact of the Antenna Facilities on the cost of painting or maintaining the Water Tower: 1) Shortly before the painting date, or date of maintenance that is impacted by the Antenna Facilities, 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 or other maintenance will proceed as it normally does. Once the painting or other maintenance is finished, Lessee will then re -attach the antennas where they were and will have them painted to match the newly painted Water Tower; or 2) The painting or maintenance contractor will bid on the cost of painting or maintaining the tower without the Antenna Facilities. The contractor will then bid on the cost of painting or maintaining the tower with Lessee's antennas left in place. The contractor will then proceed to paint or perform other maintenance on the tower with Lessee's -5- Oshkosh ML94443B July 9, 2018 ML94443B antennas left in place. Lessee will reimburse Owner for the difference between the two bids. The parties agree to negotiate in good faith regarding temporary solutions to the aforementioned maintenance. However, the City will be allowed to consider factors it deems relevant, including space and aesthetics and shall not be obligated to accept any particular resolution proposed by the Lessee. 5. Term. The initial term of this Lease 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 two additional five year terms, subject to the terms and conditions of this Agreement. This Agreement shall automatically be extended for each successive renewal term unless Lessor or Lessee notifies the other party of its intention not to extend the Lease at least twelve (12) months prior to the expiration of the initial or any renewal term. The maximum length of this Agreement is fifteen (15) years. Any subsequent relationship between the parties shall be pursuant to a new Lease Agreement signed to by the parties. 6. 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 rent payments shall include both the base rent payment, as well as the rental payment for the equipment building as described in this Lease Agreement. The initial payment shall be due within thirty (30) days of the Commencement Date, partial years to be prorated. The annual rent for each renewal term shall be adjusted as noted above. In the event this Lease is terminated by Owner under Section 8(d) below, all prepaid rents will be refunded to Lessee on a prorated basis. In the event this Lease is terminated by Lessee under Sections 8(a), 8(b) or 8(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. 8. Interference. a. Lessee's installation, operation, and use of its Antenna Facilities under this Lease shall not damage or interfere in any way with Owner's Water Tower operations or the Owner's related repair and maintenance 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 Antenna Facilities, use, or transmission operations. In the event of an emergency that involves the imminent threat of health or safety, or involves the actual or potential failure of the water tower's operations, or involves a condition of the public water tower system that would, or may reasonably, be adversely impacted without expetited actions taken, then the Owner may take immediate action that it deems necessary and will notify the Lessee as soon as reasonably practical, either before or after such action is taken. -6- Oshkosh ML94443B July 9, 2018 ML94443B b. Lessee and up to two (2) other similar carriers will be provided space on the ground, space in the tower riser tube, and space on the top handrail. Interference issues between the Lessee and other Lessees will be determined and resolved pursuant to FCC rules and regulations. Owner will not favor one cell company over other cell companies, and 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 Leased 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. 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 with other users of the Water Tower and underlying Owner's Property, should they occur due to the equipment installed and operated by Lessee. 9. Termination. Except as otherwise provided herein, this Lease may be terminated by upon thirty (30) days written notice to the other party for the reasons described 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 be considered abandoned and will be removed and disposed of by Owner at Lessee's expense. Lessee also agrees to sign all necessary documents at the termination of this Lease to ensure that any lien, encumbrance, or cloud against the Leased Premises and/or the Owner's Property that are related to this Lease are cleared from the title. The Lease may be terminated: 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 -7- Oshkosh ML94443B July 9, 2018 ML94443B 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 to carry out the functions of Lessee's business, including but not limited to the construction and/or operation of the 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, 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 Leased Premises. 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 for its Antenna Facilities. 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 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 Agreement, Commercial General =Liability insurance insuring Lessee 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 per project. Owner shall be included 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 of the Owner's Property and Leased Premises by Owner or its agents, with combined single limits of not less than One Million Dollars ($1,000,000.00). 11. Condemnation. In the event the whole of the Leased Premises is taken by eminent domain, this Lease shall terminate as of the date title to the Leased 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 -8- Oshkosh ML94443B July 9, 2018 ML94443B 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, Antenna Facilities and leasehold improvements. Owner will refund on a pro -rata basis 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 Leased Premises is taken by the condemning authority and this Lease is terminated. The pro -rata amount to be refunded shall be based on the time Lessee's equipment and facilities are located on Owner's Leased Premises, including the municipal water tower, and, if applicable, on the 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, 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 or willful misconduct 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 if applicable, the Owner's Property. 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 indemnify and hold the other Party harmless for its own negligence, or willful or intentional acts, actions and activities under this Agreement, including Lessee both for itself and on behalf of its officers, officials, employees, contractors and agents, partners, and associates, and further, to achieve said purpose, that this paragraph be liberally construed in favor of the party seeking indemnification. 13. Notices. All notices, requests, demands, and other communications shall be in writing and shall upon receipt whether by U.S. mail, certified, return receipt requested, or personal delivery, or via a nationally recognized courier to the addresses set forth above. Owner or Mm Oshkosh ML94443B July 9, 2018 rUVIXTEM Lessee may from time to time designate any other address for this purpose by providing written notice to the other party. 14. Representations and Warranties. Owner warrants that: (1) it has full right, power, and authority to execute this Lease, and that the approval of any lender or other lessor is not required in order for Owner to lease to Lessee, and if such is required, it has been obtained by Owner; and (2) to the best of its knowledge, it has good and unencumbered title to the Leased Premises free and clear of any liens or mortgages, except as may be disclosed to Lessee prior to the full execution of this Lease. Owner warrants that Lessee shall have the quiet enjoyment of the Leased Premises during the term of this Lease in accordance with the terms of 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 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 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 or contractors. Neither Owner nor Lessee, or their employees, agents or contractors shall not 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 Premises, Lessee shall have the right to cancel this Lease 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, 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 Owner's Leased Premises, including the municipal water tower, and, if applicable, on the Owner's Property. 15. Assignment and Sublease. This Lease Agreement shall not be assigned without the prior written consent of Owner. Exceptions to an assignment requiring the consent of the Owner are as follows: a) assignment to any entity which controls, is controlled by, or is under the common control with Lessee; or, b) assignment to any entity resulting from any merger or consolidation with Lessee; or, c) assignment of 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 within thirty (30) days of any assignment not requiring its consent. This Lease Agreement, and any Lease rights herein, shall not be sublet. -10- Oshkosh ML94443B July 9, 2018 ML94443B 16. Recording Documents. This Lease Agreement shall provide Lessee with a leasehold property interest in the Leased Premises described in Exhibits "B" and "C" to the extent described in this Lease Agreement. 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 agreed upon by the parties. Lessee may, at its sole option and expense, record such Memorandum in the Winnebago County Register of 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 Owner's Property and the Leased Premises. 17. Miscellaneous. 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. The venue for resolution of disputes shall be Winnebago County, 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.) -11- Oshkosh ML94443B July 9, 2018 ML94443 B IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. CITY OF OSHKOSH, WISCONSIN Its: Mark A. Rohloff 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 , 2018, 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] -12- Oshkosh ML94443B July 9, 2018 ML94443B l - STATE OF COUNTY OF l�U6l Personally 4VC4 e before me this , to me of T -Mobile Central LLC, a Delaware T -MOBILE CENTRAL, LLC, a Delaware limite liability company B (i By; (name) Its: (title) �/ring sera Ions 9-17-18 SS T -Mobile Legal Approval as to form ZZ)'�day of�� 2018, the above-named known to be the S , (1 5" (title) limited liability company, and th4 persoti who executed the foregoing document and acknowledged the JOANNE M PILGRIM diticial Seal Notary Publio - State ollllinois My Commission Expires Aug 4, 2020 Oshkosh ML94443B July 9, 2018 same. Notary Public, State of My commission: -13- ML94443B Exhibit A Legal Description That part of the southeast % of the northeast % and part of the northeast % of the southeast % of Section 23, Township 18 north, Range 16 east, in the First Ward, City of Oshkosh, Winnebago County, Wisconsin, described as follows: Lot 2 of Certified Survey Map Number 7150, located in the City of Oshkosh, Winnebago County, Wisconsin, and recorded with the Winnebago County Register of Deeds on October 7, 2016, in Volume 1, Page 7150, as Document Number 1724920 PIN: 90102000100 Street Address: 50 Riverway Drive -14- Oshkosh ML94443B July 9, 2018 ML94443B Exhibit B Site Location WATER TANK �— (ABOVE) i \ p 1 GATE MR) 1 / 11 11—A \ 1 4 1 x '� / I I i I I I 1 1170--w I NATER TANK (BYOTIERS) 11 ! I F. r�•+ TRANSFORMER (BY OTHERS) I 1 I +EQU / �\ / \ Ni ROOM1 \ TO BE UTRRED, \ \ SEE G2 / SEE C-2 \\ Exhibit B Site Location f (DY 0111ERSy / WATER TA / / ACGESS EASENE \ + ENTRANCE/ A OTHERS) a T (J) NEW HIGH CAP HCS AND (B) 151' COAX (FMURE) INSTALLED W UIDERGROWD CABLE CONDORS (BY OTHERS)--------------- -15- Oshkosh ML94443B July 9, 2018 WATER TANK �— (ABOVE) i \ 1 1 11 \ 1 I i I I I 1 1170--w I NATER TANK (BYOTIERS) 11 ! I I CABLE ENTRY / f (DY 0111ERSy / WATER TA / / ACGESS EASENE \ + ENTRANCE/ A OTHERS) a T (J) NEW HIGH CAP HCS AND (B) 151' COAX (FMURE) INSTALLED W UIDERGROWD CABLE CONDORS (BY OTHERS)--------------- -15- Oshkosh ML94443B July 9, 2018 ML94443 B Exhibit C Equipment L—EXISTING EQUIPMENT RACK: • NEW CSR 7705 SARSAS • (2) EXISTING COVP DC BREAKERS • 63A GSM PCS ESMB DC BREAKER • 63A UMTS AWS FSMF DC BREAKER • (2) 50A NEW AMIA DC BREAKERS -16- Oshkosh ML94443B July 9, 2018 -(3) EXISTING HIGH CAP HCS TO BE UTILIZED UTILIZE EXISTING FYGA GPS ANTENNA 1VE4V 6P� QWTIF __ATO $E iIQSfALLED. Std tiV1 8 I I (1) NEW AMIA WITH (1) ASIA CORE I MODULE AND (2) ABTA CAPACITY MODULES IN EXISTING RACK I I \ (1) NEW AMIA WITH (1) ASIK CORE I I - MODULE AND (1) ARIL CAPACITY MODULE IN EXISTING RACK I r MODULES IN POWER RACK: • (1) EXISTING GSM PCS ESMB L _ J • (1) EXISTING UMTS AWS FSMF I I I � I I i _ I I I —,--T--r —J--1 --I —,-- r--I--J---1---F—J---i--I—LJ,--7 --L I ( I I I I I I I I I I I I 1 I L _ L—EXISTING EQUIPMENT RACK: • NEW CSR 7705 SARSAS • (2) EXISTING COVP DC BREAKERS • 63A GSM PCS ESMB DC BREAKER • 63A UMTS AWS FSMF DC BREAKER • (2) 50A NEW AMIA DC BREAKERS -16- Oshkosh ML94443B July 9, 2018 -(3) EXISTING HIGH CAP HCS TO BE UTILIZED UTILIZE EXISTING FYGA GPS ANTENNA 1VE4V 6P� QWTIF __ATO $E iIQSfALLED. Std tiV1 8 ML94443B AZIMUTH 323 �\ EXISTING ANTENNA TO REMAIN EXISTING FRIJ \� TO REMAIN — NEWA NNATO BE INSTALLED ONNEW PIPE MOUNT AZIMUTH 255' n N EXISTING ANTENNA / TO REMAIN ----/ EXISTING FRIJ ' TO REMAIN -/ A-2 A -I LTEAWN LTEbb 1 T6A �l1Ap 1 J 0 i6 ETI i I 11 I I 11 I1 r i i L l i I l i NEW AHLOA TO BE INSTALLED ON NEW UNISTRUT EXISTING FXFC TO REMAIN NEW ANTENNA TO BE INSTALLED ON NEW PIPE MOUNT NEW AHLOA TO BE INSTALLED ON NEW UNISTRUT EXISTING FXFC TO REMAIN EXISTING CWP TO REMAIN \— EXISTING V✓ATER TANK r I 1 L. EXISTING FXFC '— EXISTING COVP EXISTING FRUTO REMAIN —, TO REMAIN TO REMAIN EXISTING COVP - TO REMAIN f� EXISTING ANTENNA TO REMAIN NEW AHLOA TO BE INSTALLED ON NEW UNIST.T B-2 NEWANTENNATOBE INSTALLEDONNEW PIPE MOUNT \\' AZIMUTH 175' J� NEW ANTENNA PLAN 2 8-2 0.1 0-2 0-1 T �- r r. 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