CCR1996178COMMON COUNCIL - CITY OF MUSKEG0
RESOLUTION #178-96
AMENDED
the City of Muskego and Sprint Spectrum L.P.
Approval of License Agreement Between
BE IT RESOLVED that the Common Council of the City of Muskego,
upon the recommendation of the Finance Committee, does hereby
approve the attached License Agreement between the City of
Muskego and Sprint Spectrum L.P. subject to the approval of the
City Attorney and proposed technical changes and Exhibits
approved by the Mayor in consultation with the City Attorney.
BE IT FURTHER RESOLVED that the Mayor and Clerk-Treasurer are
authorized to sign the Agreement with the technical changes and
Exhibits if approved by the Mayor in the name of the City. All
the City's execution of same.
fees associated with the License Agreement must be paid prior to
DATED THIS 27th DAY OF AUGUST , 1996.
SPONSORED BY:
FINANCE COMMITTEE
Ald. David J. Sanders
Ald. Domonic D'Acquisto
Ald. Mark Suhr
Deferred 8/13/96
This is to certify that this is a true and accurate copy of
Resolution #178-96 which was amended and adopted by the Common
Council of the City of Muskego.
LICENSE AGREEMENT BETWEEN
THE CITY OF MUSKEGO AND
License Agreement dated effective
City of Muskego ("City") and
-, with its principal office at
, 1996, by and between the
.a
("Company').
RECITALS
A. City Owns certain real property. consisting of. among other things, a water
tower and surrounding property. located in the City of Muskego. Waukesha County,
Wisconsin. as more panicdarly described in the attached Exhibit A (the 'Property").
B. Company desires to install. maintain and operate on the Property certain
communications facilities descfibed in the attached Exhibit B (the "Communications
Facilities') and desires to construct an enclosure to house appropriate portions of
Company's Communications Facilities.
NOW, THEREFORE, FOR VALUABLE CONSIDERATION AND INTENDING TO
BE BOUND, CITY AND COMPANY AGREE AS FOLLOWS:
1. Recitals. The Recitals are Incorporated and form a part of this Agreement.
maintatn, and opemte the Communications Facilities. including up to twelve (12)
antennas and associated cabling, and grants Company a nonexclusive license to
construct an enclosure to house appropriate portions of Company's Communications
Facilities, on part of the Properry. in the specific locations designated on construction
plans and drawings approved by City [the 'Premises"), which shall be attached hereto
and incorporated herein as Exhibit C. City further authorizes Company. where
appropriate, to attach the Communications Facilities to the water tower referenced in
Recital A above (the "Structure"). in the specific locations designated on construction
plans and drawings approved by the City, which shall be attached hereto and
incorporated herein as Exhibit C. Company shall make no other use of the Premises.
The parties expressly understand and agree that this Agreement
constitutes an irrevocable license coupled with an interest and that it shall not be
revoked or othewise terminated except by expiration of its terms or as provided in this
Agreement.
2. License. City hereby grants Company a nonexclusive license to Lnstall,
3. m.
a. The initial term of this Agreement shall be for a period of five (5)
years, commencing on the earlier of ninety (90) days after the date of this Agreement
or the date of issuance of a building permit (the "Commencement Date"), and ending
on the ffth anniversary thereof. At any time prior to the Commencement Date. the
Company shall have the right to provlde written notice of termination without the
obllgation to pay any license fees. Afrer the initial five year term of this Agreement, the
Company shall have the right to renew this license for up to five (5) successive five (5)
year renewal terms. After each five year term, the license fee will be subject to
renegotlation.
b. Both City and Company have the option at any time within elghteen
(18) months prior to the expiration date of the first five (5) year term, or any subsequent term, to commence negotiations to determine the license fee for each successive term.
City and Company will negotiate in good faith to agree upon rhe license fee. Such a
negotiation shall commence immediately following written notification from one party
to the other and continue thereafter until agreement is reached. If agreement on the
license fee is not reached within three (3) months following written notification to
commence negotiations, the City may pursue an alternate carrier for the sile and, upon
providing the CIty with written notice of nonrenewal. the Company may pursue an
alternative private stte. The City will process any application regarding a private site
in accordance with its ordinances.
4. License Fee.
a. During the initial term of this Agreement, Company shail pay City
an annual base license fee of ten thousand dollars ($10,0001.
b. During the initial term and any renewal term, the &?mal base
license fee shall annually be increased by 5% over the annual license fee in effect the
immediately preceding year. Such increase shall be made and adjuste6 as of each
annual anniversary date of the Agreement.
c. The license fee shall be paid "up front". meaning that all fees that
would otherwise come due during the five year term of this Agreement. pursuant to
paragraphs 4[a) and 4(b) above, shall be paid in full on the Commencement Date ofthe
initial term.
Company shall pay to City a late fee on the total payment due of S% per month.
d. In the event that Company fails to timely pay the license fee,
e. All consideration to be provided by Company to City shall be paid
or provided to City without offset. The license fee hereunder is reserved on an absolute
net basis. Company shall pay to the persons entitled thereto all charges for Personal
property taxes, if any, assessed against the Company's equipment located on the
property, and all insurance premiums, maintenance chuges and any 0th- charges.
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Agreement for operation of the Communications Facilities on this Structure.
costs and expenses against the Pflperty contemplated under any provision of this
f. City warrants and agrees that Company, upon paying the license
fee required under this paragraph and performing the covenants set forth in this
Agreement, shall peaceably enjoy the rights granted Company hereunder
this Agreement. Company shall continuously use the Premises for the purpose of
5. ComDliance with Laws and Emlssfon Standards. Throughour [he rem of
Constructing. maintaining and operating facilities for the tEiIlSmiSSion and reception of
radio communication signals in such frequencies as may be assigned to Company by
the Federal Cornmunications Commission ("FCC-). Company, at its expense, shall
diligently, faithfully and promptly obey and comply with all federal, sP.te and local
orders, rules. regulations and laws, including all FCC and Federal Aviation Administration rules, in relation to any of its business activities or other operations
conducted upon, above or adjacent to the Premises and including the American
National Standards Institute's (-ANSI") "Safety Levels with respect to Hum= Exposure
to Radio Frequency Electromagnetic Fields" as set forth in the current AYSI standard or any FCC standard which supersedes this standard or any EPA rules or regulations
that may hereinafter be adopted which supersede this standard. In the event that any of the above orders, rules. regulations. or laws have conflicting standards, the Company
shall be required to comply with the most restrictive standard. Company shall pay, as
they become due and payable. all fees. charges. taxes and expenses required for
licenses and permits required for Company's use of the Premises.
6. Installation and Maintenance of Communication Facilities.
a. Company shall, at its sole cost and expense, install, operate. uld maintain
Communications Facilities shall be completed in a neat and workmanlike manner in
the Communications Facilities on the Premises. Company's Installation of the
accordance with sound engineering practices, applicable rules. regulations and laws and in strict compliance with Exhibit C. All work sh2.11 be performed either by Company
or by a fully qualified independent contractor who carries all insurance required under
Paragraph 11 and who has been approved in writing by City. which approval may be
made by City as per usual policies and practices. before such contractor has done my
work on the Premises. Regarding any independent contractor employed by Company
to work on the Premises, certificates of all insurance coverages required under this
Agreement shall be provided to City by Company prior to the commencement of any
work upon the Premises by such contractor. Company's Communications Facilities
and any enclosure Company constructs on the Premises shall remain the exclusive
property of Company.
b. Company, at iKs expense, and within thirty (30) days after the instahtion
of the Communications Facilities, shall provide to City "as built," ?lulning and
engineering drawings of the Communications Facilities. which shall not include my
proprietary information. Such drawings shall be accompanied by a complete and
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of which shall be attached hereto an incorporated herein as Exhibit D.
detailed inventory ofall Communications Facilitles actually placed on the Structure, all
c. Any damage done to the Property during installation or during operations.
which is due to Company's Intentional or negligent acts or omissions. shall be
immediately repaired at Company's expense and to City's satisfaction. Company shall
pay all costs and expenses In relation to mainkining the structural integrity of any
Structure to the extent such costs and expenses arise out of Company's installation and
operation of the Communications Facilities. Company shall not permit any claim or
lien to be placed against any part of the Property that arises out of work, labor, material
or supplies provided or supplied to Company, its contractors or subcontractors, for the
installation, construction, operation, maintenance or use of the Premises or
Communications Facilities.
d. Company shall design, place and Improve ail of Its Communications
Facilities in a manner that will keep aesthetlc impact held to a minimum practical level.
Upon initial installation and the installation of any improvement to the
Communications Facilities, City reserves the fight to require Company to paint the
Communications Facilities or shield the Communications Facilities from view and take
such other reasonable action as City, in good fzith. determines necessary to minimize
aesthetic impact.
e. Company shall separately meter chargesfor the consumption of electricity
and any other utilities associated with its use of the Premises and shall Day all costs
associaied therewith.
f. Company, at its expense. shall have sole responsibiIity for the
! maintenance. repair. and securitv of its Communications Facilities and shall keep the
same in good repalr and condition during the term of this Agreement.
g. A landscaping plan for the site shall be proposed and is subject to the
approval of City prior to the Commencement Date. Company, at its expense, shall
install and maintain fts landscape according to the approved landscape plan, which
shall be attached hereto and incorporated herein as Exhibit E.
h. City shall notify Company at least forty-five (451 days in advance of the
date when any Structure to which the Communications Facilities are attached or in
which they are housed is scheduled to be painted. City shall decide, after consulting
with company, which of the foilowing two options shall be used. Option I: Shortly
before the painting date, Company, at its sole expense. shall place a temporan antenna
my on a crane parked near the site. Company shall then remove the antennas from
the Structure and the painting shall proceed as it normally does. Once the painting is
finished, Company, at its sole expense, shall &Yen re-attach the antennas where they
were and shall have them painred to match the newly painted Structure. Option 2:
The painting contractor will bid on the cost of painting the Structure without the
Communications Facilities. The contractor will then bid on the cost of painting the Stmctwe with the Company's antennas left in place. The contractor will then proceed
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to paint the Structure with Company's antennas left in place. Company shall
reimburse City for the difference between the two bids.
i. Any additional costs for servicing or maintaining any Structure that are
due to the presence Of the Communications Facilities, including additional driveway
asphalt and snow plowinghce control, shall be the responsibility of Company and $hall
be paid by Company. Company shall abate or remove gmti from the
Communications Facilities within thirty (30) days of City's written notice regarding
same.
7. Modifications. Company shall not makeany material additiom. alterations
or improvements to the Communications Facilities, the Premises. the Structure or the
Property without the City's prior written approval, and the City shall consider any
policies and practices. Company shall submit to City a propoa for any such
requested material additions. alterations or improvements as per the City's usu&
modifications ad any supplemental materials as may be requested for City's evaluation
and approval in accordance with the applicable City ordinances. If approved, such
modifications shall be made at Company's sole expense and only upon it first obtaining
all necessary governmental approvals and permits for such modifications. which the
City shall process in accordance with the applicable City ordinmces. On making such
modifications, Company shall provide to City updated "as built' plannlng and
englneering drawings as specified in paragraph 6(b). Modifications that result in
additional vlsible equipment on the Structure or changes to the space requirements
described in Exhibit C, may result in a demand for an increzsed license fee. which
demand Company shall timely consider. In the event that the City and Company do
not agree on the amount of an appropriate increased license fee, City 2nd Company
agree that the issue shall be submitted to a mutually agreeable arbitrator, or in lieu of a mutually agreeable arbitrator. to an arbitrator chosen by a Judge of the Waukesha
County (Wisconsin) Circuit Court. to determine the amount of the increased license fee
that is appropriate due to the modifications, and the arbitrator's decision shall be final
and binding upon the City and the Company. Any increzsed license fee shall be pald
in full, including all resulting increases through the remainder of the term. at the time
that the modification is made. Notwithstanding any provision in this Paragraph to the
contrary, without obtaining City's prior consent, the Company shdl have the right to:
(i) make material additions, alterations orimpmvements to Company equipment housed
within any enclosure Company constructs on the Premises: and (ii) replace for repair
and maintenance purposes equipment installed on. in or about the Structure with
replacement equipment of a substantially similar kind which is reinstalled in
substantially the same place and position as the replaced equipment.
8. Studies. Prior to approving any installation under Paragraph 6 or
modincation under Paragraph 7, Company shall provide City with studies consistent
with federal requirements and the Company's license obligations to deternine whether
Company's proposed installation or modlfication will interfere with Lye electronic
equipment of City, other licensees of the City. or nearby property owners. Prior to the
installation ofany equipment on the Structure pursuant to Puagraph 6 and prior to the
installation on the Structure pursuant to Paragraph 7 of any additionzl equipment or
replacement equipment which is significantly greater in size,weWht or volume than the
existing equipment, Company will also provide City with a Wisconsin PE stamped structural engineering study to determine whether the proposed installation or
modification will adversely afkct the structural integrity of any part of the Structure.
Upon City's request. Company will pay for an independent review of that structural
engineefing study by a reviewer of the City's choice.
9. Access.
a. Company shall not be entitled to exclusive use or occupation of the
Property, but unden'mds and agrees that its use and occupation is to be joint, but not
necessarily equal to, use and occupation by City and/or one or more of City's other
Ucensees, if any Company shall have unlimited and exclusive access to all parts ofthe
Premises including those parts designated as access areas in Exhibit C.
b. City shall permit Company to have access to the Structure to install
and test Company's Communications Facilities on and after the date on which
Company obtains all approval necessary to conduct the activities described in
Paragraph 2 of this Agreement.
c. Company shall supply to the City a list of types of categories of
professionals that it requests be given access to the Structure ("Designated
Professionals"). City shall not give access to the Structure to any person who does not
provide adequate credentials 2s a Designated Professional at the time access is required.
d. If Company or a Designated Professional requires 2ccess to the
at the
following telephone number: . Company shall. on demznd. pay to
City the rate of pay customarily paid to the person who provides Company with such
access, including any overtime factors. City shall respond to Company's request *
within two (2) hours,
Structure or any part thereof, Company shdl contact
_L
e. Company shall admit City. its employees or its agents to any part
of the Premises used or occupied by Company upon reasonable notice.
10. Interferencc.
a. Company's installatlon. operation. and use of the Communications
FacfliUes shall not damage or interfere In any way with the City's operations or related
repair and maintenance activities at the Property. City, at all times during this
Agreement, reserves the right to take any action it deems necessap'. in its sole
discretion, to repair, maintain. alter, or improve the Properry. City agrees to give
reasonable advance notice of such activities to Company and to reasonably cooperate
with Company to carry out such activities with a minimum amount of inteserence with
Company's transmission operations. AU painting or any other maintensnce or repair
work which requires the removal of the Company's antennas or other eqLpment from
the Structure shall be completed in accordance with paragraph 6(h) above.
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Facilities and the installation, operation and rnzintenance of the Communications
b. Company warrants and represents that the Communications 0 Facilities shall not interfere with the operation of City's existing electronic equipment,
wherever located on the Property, or with the electronic equipment of any other of
City's existing Licensees, wherever located on the Property. In the event of alleged
interference with such City equipment or equipment of existing City Licensees,
Company shall promptly investigate the same. at its expense. If invesxigation reveals
that Company is causing the interference. Company shall promptly take all steps
necessary to eliminate the lnterference at Company's cost. If Company is unable to
eliminate the interference within a reasonable period of time, Company shall have the
option to terminate this Agreement and remove the Communicatlons Facilities that are
causing the interference from the Property, Upon such termination, the Company's
further Liability shall be determlned fn accordance with paragraph 2l(c).
Notwithstanding the foregoing. City shall diligently attempt to resolve any complaints
of interference with electronic equipment made by nearby property owners. If the City
is unable to resolve such complaints on its own, only then will the City refer the
complaints to Company for investigation.
c. City makes no warranties or representauons regarding Company's
exclusive use of the Premises or non-inte~erence with Company's transmission
operations or that the Property or utilities serving the Property. if any, are fit for
Company's intended use and all such waranties and representations are hereby
disclaimed. Notwithstanding the above, City agrees that each of its license agreements
with other licensees shall contain a provision substantially the Same as Paragraph 10b
and that City shall enforce such provision in a nondiscriminatory mmer with respect
0 to all of its licensees.
11. Insurance.
a. General. At all times during che term of this Agreement, Company
shall keep in force and effect all insurance policies as outlined below, issued by a
company or companies licensed to do business in the State of Wisconsin and A.M. Best
A rated or better and class VI1 sze or larger. Such insurance will be primary. All
contractors and al1 of their subcontractors who perform work on the Premises shall
and automobile liability insurance coverages of the type that Company is required to carry, in full force and effect. worker's compensation, comprehensive general liability
obtain under this paragraph with the Same limits. Prior to the execution of Uus
Agreement and prior to each insurance policy expiration date during the term of this
Agreement. Company will furnish City with 2 Certificate of Insurance. The Certificate
shall ieference this Agreement and worker's compensation and property insurance
waivers of subrogatton required by this Agreement. City will be given t'nirty (30) days
advance notice of cancellation or non-renewd of insurance during the term of this
Agreement. City, its council, boards, commissions. agencies, officers, employees and
representatives (collectively "Additional Insureds") shall be named as additional
insureds under all of the policies. except worker's compensation policies, which shall
be so stated on the Certificate of Insurance. All policies, other than worker's
compensation, shall be written on an occurrence and not on a cl2ims made basis. All
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policies may be written with deductibles. not to exceed $100,000. Company shall
defend. indemnify and hold harmless City ad Addition& Insureds from and against 0 payment of any deductible and payment of any premium on any policy recuired under
this paragraph.
b. Worker's Com-tion and EmDioverj' Liabilitv lnsuran
Statutory worker's Compensation benefits and employers' liability inswce with a Ce.
limit of liability no less than $100,000 each accident. 8100,000 each claim by disease,
and $5OO,ooO policy limit. Company shall require subcontractors aTd others not
protected under its insurance to obtain and maintain such Insurance.
C. Commercial Ceneml Liabilitv tnsumzce. Policy wiil be written to
I provide coverage for, but not limited to, the following: premises 2nd operations,
products and completed operations, personal injury, blanket contractuzl coverage,
broad form property damage, independent contractor's coverage ad coverage for
property damage from perils of explosion, collapse or darmge to underground utilities
(commonly known as XCU coverage). Limits of liability riot less thm. S1.000,OOO
general aggregate, 81.000,000 productskompleted operaions aggregzte. $1,000,000
personal and advertising injury, $1.000.000 each occurence. Coverzge shall not
contain a standard form pollution exclusion, nor shall it exclude cliims or suits that
arise from the effects of electromagnetic field or radiatior,.
d. Automobile Liabilitv Insunnce. Busies 2utornobile policy
covering all owned. hired and non-owned private passenger autos 2nd commercial
vehicles. Limits of Liability not less than $1,000,000 e2ch occurrence. S1.000.000
aggregate. ~0 l e. Umbrella Lfabilltv Insuranc& Coverage to be i7. excess of
employers' liability, commercial general liability, and automobile liability insurance
required above. Limits of liability not less thzn $5,000,000 e2ch occurrence.
S5.000,000 aggregate.
The aforesaid limits of liability may be increased or decreased by mutual
consent of the parties, which consent will not be unreasonabiy withhelZ by either party.
Ln the event of any factors or occurrences, including subs-zntia! increves in the level
of jury verdicts or judgments or the pasrage of state, federd or other governmental
comnensation plans, or laws which would materially iccrezse or decrease City's or
Com$any's exposure to risk.
f. Worker's Comaensation Waiver of Subroeation. City shall not be
liable to Company. Company's contractors or their subcontractors. for &?y infuries to
Company's employees or those of its contractors or their scbcontrxtors zising out of
or in connection with the grant of this Agreement, inclxding any aid dl work of any
type performed upon the Premises or Property. inclding lnjuries z?sing durlng
equipment installation, alteration, modification. improvernext. mainte-ance. repar,
replacement, or use, or ingress or egress to or from *e Property tinless caused
primarily by the intentional acts or omissions or negligence of Cii! its agents or * Ri27708.1 S-
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employees._For DuQOSes of this Agreement. "aross negligence' shall F?anv willful.
wanton or reckless disre2ard of rivhjSor safetv.
Except as set forth above, Company and Company's ContrccIors and their
subcontractors shall each waive any and ail rights of recovery from City for worker's
compensation claims made by their respective employees and skAl obrai? such waiver
from their worker's compensation insurer. Company. for ifseL?and it.$ contractors and
their subcontractors, agrees that the indemnification and hold harmless provisions of
this Agreement extend to any such claims brought by or on bek.if of ar.y employee of
Company, any Contractor of Company or thek subcontractors.
g. Prooertv Insurance. Each pmy will be resporsible for maintaining property insurance on its own buildings .%Qd other improv?.menrs. hcluding all
equipment, fixtures. utility structures. fencing, or SUPPOK sys:ems Gmt may be built or placed upon the site to fully protect against haza.rds of fie. v-md2k.m and malicious
mischief, and such other perils as are covered by policies of Lxam.nce commonly
referred to and known as "extended coverage" insurance or sei.f-iz$Jre such exposures.
To the extenr covered by property insurance. Company .md Ci;? hereby release each
other from and waive all fights against each orher for any loss or damage to property
caused by fire or other peril if the property is insured for suc?. loss or dmage in any
policy of insurance even If such loss or damage is caused by the f2u!t or negligence of
the other party or anyone for whom such party is responsible. The Cornpny and City
agree that to the extent any such policy of insurance provides i? fight of subrogation in
the insurer, each will obtain from its insurance carrier a waiver 0: subrogation to the
insurer. each will obtain from its insurance cmer a waiver of subrsgzrion for the
matters here described In any such policy of insurance. The poiicies wil! provide such
waivers of subrogation by endorsement or otherwise.
12. Damage or Destruction of Prmertv. If the PrerrLises are destroyed or
judgment of Company, materially and substantidly !irnlts Compx~Ys effective use of
damzged, in no way due to the act or inaction of Company. to XI ex:er.i Liar. in the sole
the Communications Facilities, the Company nay redate rhs Agreenent by giving
one year's notice to the City. As of the date of such notice. Co.5Ipany's 2ayments shall
be pro-rated for that period of time, and any pre-paid money beyond tim time period
shall be returned to Company in accord with the provisior,s of pa-dgmphs 2Ua) and
21(c). Company shall be obligated to re-pay any of the refunded license ree for any time
period during which Company 1s able to operare~the CommErdcatior,s Facilities by
using a temporary arrangement or if the Premises are resiored. Reg&rdIes ofany other
provisions contained in this Agreement. City shall have EO cjljga2on to rebuild or
restore any part of the Premises in the event of any ssch dz2ge or lesrruction.
13. Indemnification. Company shail defend, ir.der;lr.ifv mrd hold harmless
City md all associated. afilliated, allied and subsidiary entities cf City. wkether existhg
now or in the future, and their respective oficials. officers. de?ar,rr.enrs. agencies,
counties. boards, representatfves, employees. agents. conrracrors a;ld attorneys
(collectively, "Indemnified Parties") against zny 2nd all liability. claims. costs. damages.
expenses, demands. lawsuits or disputes (Inclueing reasonzSe z:tor.ey f?es of COUSel
K127208.1 -9
selected by City and all other costs 2nd expenses of litigation) arising in any way from
(I) any condition, occurrence or accident upon the Premises which causes injury or
illness to any person or persons whomsoever or to any property whatsoever. arising in
any way from the installation. presence. operation, mainter.ance or rernoval of the
Communications Facilities, unless caused primar;Jy by theintentional acrsor omissions
or =negligence of City. its tgents or employees; (ii) work, labor, mtterial or supplies
provided or supplied to Company. its contxactors or subconuactors. for the Installation
construction, operation, maintenance or use of the Premises or CommunfcaUons
Facilities, including any claim or lien arising therefrom: (iii) Company's breach of any
wananty. representation, obligation or other provision of this -4greernent; and (iv) any
fmancing or securities offering by Company or its alfiliates for violations of common law
or any laws. statutes, or regulations of the State of Wisconsin or United States,
includFng those of the Federal Securities and Exchange Commission, whether by
Company or otherwise, This indemnification language specifically includes, among
other things. any and all liability relat-d to or wclated with exposure to
electromagnetic fields or radio frequencies.
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14. Environmental. Company represents and uurants that its use of
unlawfully store on the Propeny or unlawfully transpox to or over the Property any
Premises will not generate any hirardous scbstances. tkai it will not dispose or
hazardous substvlces and that its Cornmunicarions Facilities do not Constitute or
unlawfully contain and will not generate any hazardoEs szbstace. No hazardous
substance may be lawfully used, stored on or trmspoced over ~e Property except as
are necessary for the operations of the Communications Facilities on the Propeny.
"Hazardous subsrace" shall be inre.?reted broadly to my substance or material
designated or defined as hazardous or toxic waste. i-izmrdous or toxic material,
hazardous or toxic or radioactive substance, or other similu ern by any federal. state
or 1cm.I laws, regulations or rules now or heredter in erect inc!-ding zry amendments.
Company shall defend, indemnify and hold hmless Indernnffied Parties from and
against any and all liability, loss. cost. damage, and exzense. including reasonable
attomevs' fees arising from or due io the relesse. threatened rele2se. storace or disDosal
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U-anv of any such hazvdous wales or hazzrdous substanceson. under or
adjacent to the Property.
15. Tares: No Liens. Co,n?any shall pay and be responsible for any and all
.personal and real estate taxes and assessments. general &qd specid. levied and assessed
gainst. or with respect to, or neasured by. the Premises znd the Communications
Facilities. If any sales, use. income or other tau is ever assessed or levied against the
license fee. charges payable by Comgany under this AgreeEeRr or that otherwise relate in any way to this Agreement, Company shA pay IhS tw upon demand by City.
Company shall not do anything which might cacse or result in 2nd shall not permit the
filing of a lien against any pr, oi the Propmy. whether filed against City or Cornpaw.
Kl27204-1 - 10-
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16. Llmitatims. Company undertakes -md assumes for its officers. agents.
af€jdiates. contractors and subcontractors and employees (collectively "Company" for the
purpose of this Paragraph), all risk of dangerous conditions. FT any. on or about the
Property. City shall not be liable for and Company shall defer.d. indemnify and hold
harmless Indemnified Parties from any damage or threat of damage caused
Company * unless primarily caused by the intentional acts or omissions or
negligence of City, its agents or employees.
No provision of this Agreement is intended, or shall be construed, to be a waiver
for any purpose by City of the provisions of Section 893.80 of the Wixonsin Statutes
or other applicable limits on municipal liability. No indemnification provision contalned in this Agreement shall be conscrued to in any way limft z!y other indemnification
provision contained in this Agreement.
17. Default. Company shall be deemed in default hereunder upon Occurrence
of any of the following events: (a] Company defaults in the pzyment of the license fee
or any other sums to City when due, and does not cure that default within fifteen (15)
defaults in the performance of any other term of L?is Agreemezt and does not cure that
days of the Clty providing written notice of default upon Company; (b) Company
default within thirty (301 days after written notice thereof by City. provided that such
period shall be extended as reasonably necessary in the event that Company Is
pmeedlng in good faith with due diligence to cure such defau!t but is unable to do so
within thirty (30) days: (c) Company abandons or vacates the Premises: (dl Company
files for relief under feded bankruptcy laws or makes ary assignment for the benefit
of creditors; or (e) Company becomes insolvent.
18. Remedies on Default. In the event of any default by Company, City may, in additlon to any other remedy it may have under law, serYe a written notice upon
Company that City elects to terminate this License upon a specified date not less than
ten (10) calendar days after the date of serving such notice. and this License shall
expire on the date so specified as if the date had been or;girizlJy rued as the expiration
date of the term granted herein. In the event this License is 50 terminated, City shall
receive from Company a sum equal to the total of the unpziid consideration through the
original explration date of the current five year term, 2nd City shall retain all prepaid
consideration.
Company shall not be released from any liability for the license fee for the
current five year term hereunder by reason of City's engaging in any legal proceedings
available to it upon such default, nor shall a temination of :his Agreement following
default release Company from liability for the payment ofthe license fee for the current
five year term as herein provided.
19. No Nuisance$. Company shall not knowingly perform any acts or carry
on any practices upon the Premises which may enda?ger or injure the Premises,
Property, or surrounding area or any person or be a nulmce or menace to adjoining
property owners and shall keep the Premises free and clear oidebris. rubbish. junk and
garbage.
KIZ77ZOB.l - 11 -
26. Survival Of Provision. All indemnification obligations of Company under
this Agreement, including Paragraphs 10(b). 11.13, and 14, shaU survive the expiration
ST& tG=KZtion of this Agreement. 33lTlS 2 SNlICOH PQ:Li 566T-LZ-3nb
07
Yl. ~~~~~~~~~~~~~~~~~,~~~~~-~~~~~~~~~~t this Agreenext shall be subjec:z.?!d .. . -
and supplements thereto now or hereafter affecting any part of the Property. Company
subordinate to any and all mortgages, including all extensions, renewals, amendments.
agrees to execute and deliver promptly any instrument requested by City or any
mortgagee or trustee to further confirm the Subordination of this Agreement to a
particular mortgage, provided that such agreement contains reasonable consent and
non-disturbance provistons to guaranty Company's continued right to use the Premises
in accordance with this Agreement ln the event that the mongagee or trustee takes
control of the Property.
28. FstoDDel Certifjra. Company shall, at any time and from time to time I upon not less than ten (10) days prior request by City, deliver to City a statement in
writing certifying that (I) this Agreement is unmodified and in full force (or if there have
been modifications. that the Agreement is in full force as modified and identifying the
modifications): (11) the dates to which the license fee and other charges hereunder have
been paid; Mi) so far as the person making the certificate knows. City is not in default
under any provision of this Agreement; and (iv) such other matters as City may
reasonably request.
~ '0
29. PJ Xorhing contained in this Agreement shall
limit or interfere with or be construed to limit or interfere with any of City's rights or
powers. including City'sauthority in enforcement ofitsmunicipal ordinances, including
its zoning code. unless specificzlly and explicitly granted to Company in this Agreement
contrary to City's rights and powers.
30. Memorandum of Agreement. The parties hereby agree to execute and
record a short form memorandum of this Agreement outlining the basic provisions of
this Agreement re!ating to the initial term, the Company's renewal options and access
rights and such other basic terms mutually agreed upon by the parties.
31. ADDlicableLaw 2nd Severabilitv. This Agreement and any interpretation
thereof shall be ruled by the lnternal laws (nor the choice of law provisions) of the Stare
of Wisconsin. If one or more of the terms hereof are found to be void or invalid. those terms shall be deemed inoperative and null and void, and shall be deemed modified to conform to such rule of law, all without invalidating any of the remaining provisions
of this Agreement or the enforceability thereof, which shall continue in full force and
effect.
32. Mixellaneou~, This Agreement constitutes the entire agreement and
undersaqding 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 Agreement must be in 0
K117208-1 . 14
RUG-27-1995 17: 12 HOPKINS 2 SUTTE?
312 5% 7776 P 07
right, power and authority to sign this Agreement.
writing and executed by both parties. Company and City represent that each has full
33. Notlces. AI notices hereunder shall be in writing and shall be deemed
given if personally delivered or mailed. certified mail, return receipt requested, to the
following address:
If to City, to:
If to Company, to:
IN WITNESS THEREOF. the parties have caused this Agreement to be executed
on the date and year first written above.
CITY: CITY OF MUSKEGO
By:
David L. De Angelis, Mayor
BY. Jean K. Marenda. Clerk
COMPANY:
Title:
20. AqWnabilitv. Company may assign this license to an affiliate (ZS defined
below) or to a non-afliliated third party in a tmSaction involving the sale of all or
substantially all of Company's assets in the Milwaukee Metropolitan Trading Area
("MTA') without the consent of City. Company may not asslgn thIs license to a non-
affiliate (except as part of a sale of all or substantially all of Company's asets
to a non-mliated third party -1 without the prior written consent of
City. which shall not be unreasonably withheld or delayed. As a conditior? of such
consent, City shall be entitled to 90% of the Company's net profit. if any, from the sale
of this license to a non-affiliate. No assignment shall relieve Company of any
obligations hereunder. Nothing in this Agreement shall preclude City from licensing
or leasing other space on either the Structure or the Property for any puqose to a
person or entity that may be In competition with Company or any other pmy
'M~liate" means any present or future, direct or indirect, parent entity. subsidiary or
successor of Company or any other partnership, limited liability company, CoqJoration,
trust or other entity which is controlled by, controls or is under common control A
the Company.
21. Termination of License.
a. Upon termination or expiration of this Agreement. Company shall
at its expense, promptly and diligently remove all of the Communications Facilities and
any other personal property installed in or on the Premlses and leave the Premises in
the Same or better condition as existed Drior to the date of this Agreement, reasonable a ~~~. ..~ ~
wear and tear excepted. -
b. If. during the termofthis License City deternines that the Property
is needed for a spectal purpose by City or any of its bureaus or departments, which
special purpose would exclude Company's Communications Facilities 2nd all other
similar uses by any party other than City itself. this License. and any extension thereof,
shall be subject to cancellation by City upon six (61 months' written notice to Company.
In the event of such termination. Company shall not be obligated to pay any license fee
hereunder during the period between the dare of City's notice of ternination and the
date Company vacates the Property. License fees the Company paid for any time period on and after it receives City's notice of terminatton shall be refunded to Company.
After the City notifies Company of termination. Company shall remove from the
Property all of A Communication Facilities.
c. Company may terminate thls Agreement at any time during the
term hereof by providing written notice to City in the event that: (i) any license, permit
or other governmental approval or authority is canceled. expires or is withdrawn or
termfnated and Company is no longer authorized to operate its Communication
Facilities from the Premises; (ii] due to changes In technolo&v or other events beyond
Company's control. Company is no longer able to utilize the Preriises for its
Communication Facilities: or (iii) City requfres relocation pursuant to Pmgraph 23 of
this Agreement. If Company provides written notice of this termination st least one
year before the termination date, then Company shall not be liable to pay a license fee
for any time period beyond the termination date. and the City shall return to Company
KIZ7ZOB-1 - 12-
termination date. If the Company does not provide written notice of this termination
at least one year prior to the termination date. the Company shall be liable to pay the
license fee for one year following the date that the written notice was received by the
City, and the City shall return to Company the pro-rated amount of any pre-paid license
fee for any period of time beyond one year after the written notice was received.
C m v’s Corn
22. Securitv for Removal. A to commencement of * installation of
rnunicatlQns Facillties on the Premises. Comoany shall establish wlth
-nvan a title escrow for the benefit of the Citv, into which CornDanv shall deoosit
the sum Of Ten Thousand Dollars (SlO.000). to ensure that the Communications
Facilities wffl be removed and the Premises restored to its previous condition.
reasonable wear and tear excepted, at termination or expiration of this Agreement.
In t erest accruinu on said geoosit shall be Davable to-have 2.
23. Relocation. In the event of unforeseeable and unusual circumstances, or
the City’s determination ofa need of the Propeny for a speck! use per Paragraph 21(b),
City may. once during the term of this Agreement, including any renewal term of this
Agreement, at its option. require Company to relocate the Communications Facilities,
to another location on rhe Property. or, to other property owned or controlled by City
that is located in the general vicinicy of the Premises md reasonably suitable for
Company’s Cornrnunicarions Facilities. as determined by the Company, which new
location shall then constitute the Property, Structure and Premises. City shall be
responsible for 100% of the relocation costs if re!ocation is required during the first year
of the initial term ofthis Agreernent:,90% of the relocation costs if relocation is required
during the second year of the initial tern of this Agreement: 80% of the relocation costs
if relocation is required during the thiid year of rhe initial tern of this Agreement, 70%
of the relocation costs if relocation is required during the fourth year of the initial term
of this Agreement: 60% of the relocarlon costs if relocation is required in the fifth year
of the initial term of this Agreement: and none of the relocation Costs if relocation is
required after the fifth year of the initial term of this Agreement. In connection with
any renegotiarion of any renewal term, City shall advise Company of any anticipated
events or Occurrences that may result in relocation during the renewal term then being
negotiated.
0
24. Reimbursement of Costs. Company shall, on demand, reimburse City
for its pro-rata share of all rezsonabie costs and expenses of any type City incurs in
connection with this Agreement (including performawe ad enforcement of its
provisions), the Communications Facilities. or any City approval required hereunder,
including engineering, legal. and ocher consulting fees.
25. Reaulatorv FilinPs. Upon City’s request, CompzTy shall provide City with
copies of all petitions. applications, reports and conmunications submitted by Company to the FCC, Securities md Exchange Commission or any other federal or
state regulatory commission or agency having jurisdiceon in respect tO any matter
affecting this License or Company’s operation of its Communications Facilities.
pprOVa1 of License A t Between
Spectrum L.P.
A
OF MUSK
-96" D
nt Spectrum L.P.
: Between
W
\ BE IT RESOLVED t9at the Common Council of the City of Muskego,
upon the recommenption of the Finance Committee, does hereby
approve the attac Agreement between the City of
Muskego and L.P. subject to the approval of the
BE IT the Mayor and Clerk-Treasurer are
City Attorney.
in the name of the City. All
Agreement must be paid prior to
DATED THIS , 1996.
\ SPONSORED BY:
FINANCE COMMITTEE
Ald. Domonic D'Acquisto
Ald. David J. Sanders
Ald. Mark Suhr
Deferred 8/13/96
This is to certify that this accurate copy of
Resolution #178-96 which was Common Council of the
City of Muskego.
8/96 jmb
LICENSE AGREEMENT BETWEEN
THE CITY OF MUSKEGO AND
by and between the City of Muskego and Licenae Agreement dated effective , 199
, with its principal office at a
(“Company ) .
RECITALS
A. City owns certain real property, consisting of, among
other things, a water tower and surrounding property, located in
the City of Muskego, Waukesha County, Wisconsin, as more
particularly described in the attached Exhibit A (the “Property” ) .
B. Company desires to install, maintain and operate on the
Propexty certain communications facilities described in the attached Exhibit B (the “Communications Facilities”).
NOW, THEREFORE, FOR VALUABLE CONSIDERATION AND INTENDING TO BE
BOUND, CITY AND COMPANY AGREE AS FOLLOWS:
1. Recitale.. The Recitals are incorporated and form part of
this Agreement.
2. License. City hereby grants Company a nonexclusive
license to install, maintain, and operate the Communications
Facilities (the “Premises”), including up to twelve (12) antennas 0 and associated cabling, on part of the Property, in the specific
locatione designated on construction plans and drawings approved by
City, which shall be attached hereto and incorporated herein as Exhibit C. City further authorizes Company, where appropriate, to
attach the communication facilities to a structure or house them in
plans and drawings approved by the City, which shall be attached
a building in the specific locations designated on construction
hereto and incorporated herein as Exhibit C (the “Structureo1).
Company shall make no other use of the Premises.
3. m.
a. The initial term of this Asreement shall be for a ~~
period of five (5) years, commencing on
(the ”Commencement Date”), and ending on
Thereafter. the ComDanv shall have the right to renew this license
~~ ~ ~~ -
for up to five (5) successive five (5) yedr renewal terms. After each five year term, the license fee will be subject to
renegotiation.
”
b. Both City and Company have the option at any time
within eighteen (le) months prior to the expiration of the first
five (5) year term, or of any subsequent term, to commence
negotiations to determine the license fee for each successive term.
City and Company will negotiate in good faith to agree upon the license fee. Such B negotiation shall commence immediately following written notification from one party to the other and
continue thereafter until agreement ie reached. If agreement on
the license fee is not reached within three (3) months following
written notification to commence negotiations, the City may pursue
an alternate carrier for the site and the Company may upon
providing the City with written notice of non-renewal, pursue an
alternative private site The City will process any application
regarding a private site in accordance with its ordinances.
4, License Fee.
a. During the initial term of this Agreement, Company shall pay City an annual base license fee of ten thousand Dollars
($10,000.00).
b. During the initial term and any renewal term, the
annual base license fee shall annually be increased by 5% over the
annual license fee in effect the immediately preceding year. Such
date of the Agreement.
increase shall be made and adjusted as of each annual anniversary
c. The license fees shall be paid “up front’’, meaning
that all fees that would otherwise come due during the five year
term of this Agreement, pursuant to paragraphs 4 (a) and 4 (b) ,
above, shall be paid in full on the Commencement Date of the
initial term.
d. In the event that Company fails to timely pay the
license fee, Company shall pay to City a late fee on the total
payment due of 3% per month.
e. All consideration to be provided by Company to City
shall be paid or provided to City without offset. The license fee
hereunder is reserved on an absolute net basis. Company ehall pay
to the persons entitled thereto all charges for personal property
taxes, if any, asaessed against Company’s equipment located on the
Property, and all insurance premiums, maintenance chargee and any
other charges, costs and expenses against the Property contemplated
under any provieion of this Agreement for operation of the facility
on this Structure.
5. Complianre With Laws and Emission Scandardg. Throughout
the term of .this Agreement, Company shall continuously u8e the
Premises for the purpose of conetructing, maintaining and operating facilities for the transmission and reception of radio
communication signals in such frequencies as may be assigned to
Company by the Federal Communications Commission (“FCC” 1 . Company, at its expense, shall diligently, faithfully and promptly obey and
comply with all federal, state and local orders, rules, regulations
2
ZB ‘d
and laws, including all FCC and Federal Aviation Administration
rules, in relation to any of its business, activities or other
operations conducted upon, above or adjacent to the Premise6 and
Electromagnetic Fields" as set forth in the current ANSI standard
"Safety Levels with respect to Human Exposure to Radio Frequency @ or any FCC standard which supersedes this standard or any EPA rules
or regulations that may hereinafter be adopted which supersede this
at andard In the event that any of the above orders, rules,
regulations, or laws have conflicting standards, the Company shall be required to comply with the moat restrictive standard. Company
shall pay, a8 they become due and payable, all fees, charges, taxes
and expenses required for licenses and permits required for
Company's use of the Premises.
I ! including the American National Standard's Institute's (ItANSI")
6 Installation and Maintenance of Communicationo
Facilitieq.
a. Company shall, at its sole cost and expense,
install, operate, and maintain the Communications Facilities on the
Premises. Company's installation of the Communications Facilities
shall be completed in a neat and workmanlike manner in accordance
with sound engineering practices, applicable rules, regulations and
laws and in strict compliance with Exhibit C. All work shall be
performed either by Company or by a fully qualified independent
contractor who carries all insurance required under Paragraph 11
and who has been approved in writing by City, which approval may be
made by the City as per usual policies and practices, before such
contractor has done any work on the Premises. Regarding any
independent contractor employed by Company to work on the Premises,
Agreement shall be provided to City by Company prior to the certificates of all insurance coverages required under this
Commencement of any work upon the Premises by such contractor.
property of Company.
Company's Communications Facilities shall remain the exclusive
I
b. Company, at its expense, and within thirty (30) days
after the installation of the Communications Facilities, shall provide to City "as built" planning and engineering drawings of the
Communications Facilities, which shall not include any proprietary
information. Such drawings shall be accompanied by a complete and
detailed inventory of all Communications Facilities actually placed
on the Structure, all of which shall be attached hereto and
incorporated herein as Exhibit E.
c. Any damage done to the Property during installation
or during operations shall be immediately repaired at Company's
expense and to City's satisfaction. Company shall pay all costs
and expenses in relation to maintaining the structural integrity of
any structure *(as later defined herein) in connection with
Company's installation and operation of the Communications
Facilities Company shall not permit any claim or lien to be
3
€!a -.4
placed against any part of the Property that arises out of work,
labor, material or supplies provided or supplied to Company, its
contractore or subcontractors, for the installation, conetruction,
operation, maintenance or use of the Premises or Communications
Facilities.
0 d. Company shall design, place and improve all of its Communications Facilities in a manner that will keep aesthetic
impact held to a minimum practical level. City reserves the right
to require Company to paint the Communications Facilities or shield
the Communications Facilities from view and take such other action
as the City, in its sole discretion, determines necessary or convenient to minimize aesthetic impact.
e. Company shall separately meter charges for the
consumption of electricity and any other utilities associated with
therewith.
its use of the Premises and shall pay all costs associated
f. Company, at its expense, shall have ~iclLe
responsibility for the maintenance, repair, and security of its
and condition during the term of this Agreement.
Communications Facilities and shall keep the same in good repair
g. A landscaping plan for the site shall be proposed and approved by City prior to the Commencement Date. Company, at
the approved landscape plan, which shall be attached hereto and
its expense, shall install and maintain ita landscape according to
incorporated herein as Exhibit F.
h. City shall notify Company at least forty-five (45)
days in advance of the date when any structure to which the
Communications Facilities are attached or in which they are housed
(the "Structure") is scheduled to be painted. City shall decide, after consulting with Company, which of the following two options
shall be used. Option 1: Shortly before the painting date,
Company, at its sole expense, shall place a temporary antenna array
on a crane parked near the site. Company shall then remove the
antennas from the Structure and the painting shall proceed as it
normally does. Once the painting is finished, Company, at its sole
expense, shall then re-attach the antennas where, they were and
shall have them painted to match the newly painted Structure.
Option 2: The painting contractor will bid on the cost of painting
the Structure without the Comrnunicationa Facilities. contractor will then bid on the cost of painting the Structure with
The
Company's antennas left in place. The contractor will then proceed
to paint the Structure with Company's antennas left in place.
bids
Company shall reimburse City €or the difference between the two
i. Any additional costs for servicing or maintaining
any Structure that are due to the presence of the Communications
4
Facilities, including additional driveway asphalt and enow
Plowing/iCe Control, shall be the responsibility of Company and
shall be paid by Company. Company shall abate or remove graffiti
regarding same.
from the Premises within thirty (30) days of City's written notice
7.
additions, alterations or improvements to the Communications Hodifications. Company shall not make any material
Facilities, the Premiaes, the Structure or the Property without the
City's prior written approval, and the City shall consider any requested material additions, alterations or improvements as per
the City's usual policies and practices. Company shall submit to
City a propooal for any such modifications and any supplemental materials as may be requested for City's evaluation and approval in
accordance with the applicable City ordinances. If approved, euch
modifications shall be made at Company's sole expense and only upon
it first obtaining all necessary governmental approvals and permits
for ouch modificatione, which the City shall process in accordance
with the applicable City ordinances, On making euch modifications,
Company shall provide to City updated "as built" planning and
engineering drawings as specified in paragraph 6(b). Modifications
that result in additional equipment or changes to the space
requirements described in Exhibit C may result in a demand for an
increased license fee, which demand Company shall timely consider.
of an appropriate increased license fee, City and Company agree
In the event that the City and Company do not agree on the amount
that the issue shall be submitted to a mutually agreeable
arbitrator, or in lieu of a mutually agreeable arbitrator, to an
arbitrator chosen by a Judge of the Waukesha County (Wisconsin)
Circuit Court, to determine the amount of the increased license fee
that is appropriate due to the modifications, and the arbitrator's
Any increased license fee shall be paid in full, including all
decision shall be final, and binding upon the City and the Company.
resulting increases through the remainder of the term, at the time
that the modification is made. Notwithstanding any provision in
this Paragraph to the contrary, without obtaining City's prior
consent, the Company shall have the right to replace for repair and
maintenance purposes equipment installed on or about the Premises
with replacement equipment of a substantially similar kind which is
reinstalled in substantially the same place and position as the
replaced equipment.
e
Paragraph 6 or modification under Paragraph 7, Company ehall
studies. Prior to approving any installation under
provide City with studies consistent with federal requirements and
the Company's license obligations to determine whether Company's proposed installation or modification will interfere with the
nearby property owners Company will also provide City with a electronic equipment of City, other licensees of the City, or
Wisconsin PE stamped structural engineering study to determine
whether the proposed installation or modification will adversely
affect the structural integrity of any part of the Structure. Upon
5
City's request, Company will pay for an independent review of that
structural engineering study by a reviewer of the City's choice.
0 9. Accesz.
a. Company shall not be entitled to exclusive use or
occupation of the Property, but understands and agrees that its use
and occupation is to be joint, but not necessarily equal to, use
and occupation by City and/or one or more of City's other
licensees, if any. Company ehall have unlimited access to all
parts of the Premises including those parts designated as access
areas in Exhibit C.
b Company shall supply to the City a list of types of
categories of professionals that it requests be given accese to the
Structure ("Designated Professionals''). City shall not give access
to the Structure to any person who does not provide adequate
credentials as a Designated Professional at the time access ie
required,
c. If Company or a Designated Professional requires
access to the Premises or any part thereof, Company shall contact
Company shall, on demand, pay to City the rate of pay customarily
paid to the person who provides Company with such accees, including
within two (2) hours.
any overtime factors. City shall respond to Company' 8 requeet
at the following telephone number:
io d Company shall, on demand, admit City, its employees or its agents to any part of the Premises used or occupied by
, Company upon reasonable notice.
10. Intprference.
a. Company's installation, operation, and use of the
Communications Facilities shall not damage or interfere in any way
with City's operations or related repair and maintenance activities
at the Property. City, at all times during this Agreement,
reserves the right Lo caka any action it deems necessary, in ito
sole discretion, to repair, maintain, alter, or improve the
Property. City agrees to give reasonable advance notice of such
activities to Company and to reasonably cooperate with Company to
carry out such activities with a minimum amount of interference
with Company's transmission operations. All painting or any other
maintenance or repair work wihch requires the removal of the
Company's antennae or other equipment from the Structure ehall be completed in accordance with Section 6(h), above.
b Company warrants and represents that the
maintenance of the Communications Facilities shall not interfere
Communications Facilities and the installation, operation and
with the oDeration of City's electronic equipment, wherever
6
located, or with the electronic equipment of any other of City's Licensees, wherever located on the Property. In the event of alleged interference with euch City equipment or equipment of City
Licensees, Company shall promptly investigate the same, at its
expense. ~f investigation reveals that Company is causing the
eliminate the interference at Company's cost. If Company is unable interference, Company shall promptly take all steps necessary to
to eliminate the interference within a reasonable period of time,
Company shall have the option to terminate this Agreement and
remove the Communication Facilities that are causing the
interference from the Property. Upon such termination, the
paragraph 21 (c). Notwithstanding the foregoing, City shall
Company's further liability shall be determined in accordance with
diligently attempt to resolve any complaints of interference with
electronic equipment made by nearby property owners. If the City
City refer the complaints to Company for investigation.
is unable to resolve such complaints on its own, only then will the
c. City makes no warranties or representations
regarding Company's exclusive use of the Premises or non-
interference with Company's transmission operations or that the
Company's intended uBe and all such warranties and representation6
Property or utilities serving the Property, if any, are fit for
are hereby disclaimed. Notwithstanding the above, City agrees that
a provision substantially the same as Paragraph 10b and that City
each of its license agreements with other licensees shall contain
shall enforce euch provision in a nondiscriminatory manner with
respect to all of its licensees.
11, Jneurance.
a. General. At all times during the term of thie
Agreement, Company shall keep in force and effect all insurance
policies as outlined below, issued by a company or companies
licensed to do business in the state of Wisconsin and A.M. Best A
rated or better and'class VI1 size or larger. Such insurance will
perform work on the Premises shall carry, in full force and effect, be primary. All contractors and all of their subcontractors who
worker's compensation, comprehensive public liability and
automobile liability ineurance coverages of the type that Company
is required to obtain under thie paragraph with the same limite.
Prior to the execution of this Agreement and prior to each
insurance policy expiration date duringthe term of this Agreement,
Company will furnish City with a Certificate of Insurance and upon
request, certified copies of the required insurance policies. The
Certificate shall reference this Agreement and worker's
by this Agreement. City will be given sixty (60) days advance compensation and property insurance waivers of subrogation required
notice of cancellation or non-renewal of insurance during the term
o€ this Agreement. City, its council, boards, commissions,
agencies, officers, employees and representatives (collectively, "Additional Insureds") shall be named as additional ineurede under
7
all of the policies, except business interruption and worker's Compensation policies, which shall be so stated on the Certificate
of Insurance. All policies, other than worker's cornpeneation,
shall be written on an occurrence and not on a claime made basis.
All policies may be written with deductibles, not to exceed
$2,500.00. Company shall defend, indemnify and hold harmlees City
and Additional Insureds from and against payment of any deductible
and payment of any premium on any policy required under this
paragraph.
b. Worker's ComDensation and EmDlovers' Liabilitv
.U&!&,rancp. Statutory worker's compensation benefits and employers'
liability insurance with a limit of liability no less than $100,000 each accident, $100,000 each claim by disease, and $500,000 policy
limit, Company shall require subcontractors and others not
protected under its insurance to obtain and maintain such
insurance.
c. Commercial General Liabilitv Insurance. Policy will
be written to provide coverage for, but not limited to, the
following: premises and operations, products and completed
operations, personal injury, blanket contractual coverage, broad
form property damage, independent contractor's coverage and
coverage for property damage from perils of explosion, collapse or
damage to underground utilities (commonly known as XCU coverage)
Limits of liability not less than $1,000,000 general aggregate,
$1,000,000 products/completed operations aggregate, $l,ooo,ooo
personal and advertising injury, $1,000,000 each occurrence.
Coverage shall not contain a standard form pollution exclusion, nor
shall it exclude claims or suits that arise from the effects of
electromagnetic fields or radiation
policy covering all owned, hired and non-owned private passenger
d. Automobile Liabilitv Insurance. Business automobile
autos and commercial vehicles. Limits of liability not leas than
$1,000,000 each occurrence, $1,000,000 aggregate.
e. Umbrella Liabilitv Insurance. Coverage to be in
excess of employers' liability, commercial general liability, and
not lese than $10,000,000 each occurrence, $10,000,000 aggregate. automobile liability insurance required above. Limits of liability
The aforesaid limits of liability may be increased or
decreased by mutual consent of the parties, which consent will not be unreasonably withheld by either party, in the event of any
factors or occurrences, including substantial increases in the
level of jury verdicts or judgments or the passage of state,
would materially increase or decrease City' a or Company' E exposure
federal or other governmental compensation plans, or laws which
to risk
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f. Worker's ComDensation WAiver of Subroaation. City
shall not be liable to Company, Company's contractors or their
subcontractors, for any injuries to Company's employees or those of
connection with the grant of this Agreement including any and all ite contractors or their subcontractors arising out of or in
work of any type performed upon the Premises or Property, including
injuries arising during equipment installation, alteration,
modification, improvement, maintenance, repair, replacement, or
use, or ingress or egress to or from the Property unless caused
solely by the intentional and wilful acts or gross negligence of
City.
subcontractors shall each waive any and all rights of recovery from Company and Company's contractors and their
City for worker' s compensation claims made by their respective
employees and shall obtain such waiver from their worker's
compensation insurer. Company, for itself and its contractors and
their subcontractors, agrees that the indemnification and hold
harmless provisions of this Agreement extend to any such claims
brought by or on behalf of any employee of Company, any contractor
of Company or their 6ubcontractors .
g. Prnpertv Insurance. Each party will be responsible
for maintaining property insurance on its own buildings and other
improvemente, including all equipment, €ixtures, utility
structures, fencing, or support systems that may be built or placed
upon the site to fully protect against hazards of fire, vandalism
policies of insurance commonly referred to and known as "extended
and malicious mischief, and such other perils as are covered by
coverage" insurance or self-insure such exposures. To the extent
covered by property insurance, Company and City hereby release each
other from and waive all rights againet each other for any lose or
damage to property caused by fire or other peril if the property is
such loss or damage is caused by the fault or negligence of the
insured fox such loss or damage in any policy of insurance even if
other party or anyone for whom such party is responsible. The
Company and City agree that to the extent any such policy of
insurance provides a right of subrogation in the insurer, each will
obtain from its insurance carrier a waiver of subrogation for the
matters here described in any such policy of insurance. The
policies will provide such waivers of subrogation by endorsement or
otherwise.
12. Damaae or Destruction of ProDertv. If the Premises are
destroyed or damaged, in no way due to the act or inaction of
Company, to an extent that materially and substantially limits
Company's effective use of the Communications Facilities, the
Company may terminate this Agreement by giving one year's notice to
the City. As of the date of such notice, Company's payments shall
be pro-rated for that period of time, and any pre-paid money beyond
that time period shall be returned to Company in accord with the
provisions of paragraphs 2l(a) and 21 (c) . Company shall only be
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obligated to re-pay any of the refunded license fee if the Premises
Agreement, City shall have no obligation to rebuild or restore any
are restored. Regardless of any other provisions contained in this
part of the Premises in the event of any such damage or
deetruction
13. Indemnification. Company shall defend, indemnify and
hold harmless City and all aesociated, affiliated, allied and
and their respective officials, officers, departments, agencies,
subsidiary entities of City, whether existing now or in the future,
counties, boards, representatives, employees, agents, contractors
and attorneys (collectively, "Indemnified Parties") against any and
all liability, claims, costs, damages, expenses, demands, lawsuits
or disputes (including reasonable attorney fees of counsel selected
by City and all other costs and expenses of litigation) arising in any way from (i) any condition, occurrence or accident upon the
Premises which causes injury or illness to any person or persons
whomsoever or to any property whatsoever, arising in any way from
the installation, presence, operation, maintenance or removal of
the Communications Facilities, unless caused solely by the
intentional and wilful acts or gross negligence of the City; (ii)
work, labor, material or supplies provided or supplied to Company,
its contractors or subcontractors, for the installation,
construction, operation, maintenance or use of the Premises or
Communications Facilities, including any claim or lien arising
therefrom; (iii) Company's breach of any warranty, representation,
obligation or other provision of this Agreement; and (iv) any financing or securities offering by Company or its affiliates for
violations of common law or any laws, statutes, or regulations of
the State of Wisconsin or United States, including those of the
Federal Securities and Exchange Commission, whether by Company or
otherwise. This indemnification language specifically includes, among other things, any and a11 liability related to or associated
with exposure to electromagnetic fields or radio frequencies and
any claims, losses, and other covered matters that are caused or
contributed to by the negligence of one or more Indemnified Parties
and or assigns.
14. Fn
use of the Premises will not generate any hazardous substances,
vironmental. Company represents and warrante that its
that it will not dispose or unlawfully store on the Property or
unlawfully transport to or over the Property any hazardous
substances and that ite Communications Facilities do not constitute
or unlawfully contain and will not generate any hazardous
or transported over the Property except as are necessary for the substance. No hazardous substances may be lawfully used, stored on
operations of the Communications Facilities on the Property.
"Hazardous substance" Rhall be interpreted broadly to mean any
substance or material designated or defined as hazardous or toxic
waste, hazardous or toxic material, hazardous or toxic or
radioactive substance, or other similar term by any federal, state,
or local laws, regulations or rules now or hereafter in effect
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including any amendments. Company shall defend, indemnify and hold harmless Indemnified Parties from and against any and all
liability, loss, cost, damage, and expense, including reasonable
attorneys' fees arising from or due to the release, threatened release, storage or disposal of any such hazardous wastes or
hazardous substances on, under or adjacent to the Property.
for any and all personal and real estate taxes and asse~~srnents,
15. Taxes: No Liens. Company shall pay and be responsible
general and special, levied and assessed against, or with respect
to, or measured by, the Premises and the Communications Facilities.
against the license fee, charges payable by Company under this
If any sales, use, income or other tax is ever assessed or levied
Agreement or that otherwise relates in any way to this Agreement,
Company shall pay that tax upon demand by City. Company shall not
do anything which might cause or result in and shall not permit the
filing of a lien against any part of the Property, whether filed
against City or Company.
16. e . Company undertakes and assumes for its officers, agents, affiliates, contractors and subcontractors and
employees (collectively "Company" for the purpose of this
Paragraph), all risk of dangerous conditions, if any, on ox about
the Property. City shall not be liable for and Company shall
defend, indemnify and hold harmless Indemnified Parties from any
damage or threat of damage allegedly caused Company for any reason
other than City's intentional acts.
,,
No provision of this Agreement is intended, or shall be
construed, to be a waiver for any purpose by City of the provisions
of Section 893.80 of the Wisconsin Statutes or other applicable
limits on municipal liability. No indemnification provision
any other indemnification provision contained in this Agreement.
contained in this Agreement shall be construed to in any way limit
17. Default. Company shall be deemed in default hereunder
upon occurrence of any of the following events: (a) Company
defaults in the payment of the license fee or any other Bums to
City when due, and does not cure that default within fifteen (15)
days of the City providing written notice of default upon Company;
Agreement or any other agreement between Company and City and does (b) Company defaults in the performance of any other term of this
not cure that default within thirty (30) days after written notice
thereof by City, provided that such period shall be extended as
reasonably necessary in the event that Company is proceeding in
good faith with due diligence to cure such default but is unable to
do so within thirty (30) days; (c) Company abandons or vacates
the Premises; (d) Company files for relief under federal bankruptcy
laws or makes any assignment for the benefit of creditors; or (e) Company becomes insolvent
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18. Rem-dies on Default. In the event of any default by company, City may, in addition to any other remedy it may have under law, serve a written notice upon Company that City elects to
terminate this License upon a specified date not lese than ten (10)
License shall expire on the date so specified as if that date had calendar days after the date of serving such notice, and this
been originally fixed as the expiration date of the term granted
herein. In the event this License is so terminated, City shall
receive from Company a sum equal to the total of the unpaid
consideration through the original expiration date of the term, and
City shall retain all prepaid consideration.
Company ehall not be released from any liability for the
Premises or by City’s taking any other legal proceedings available
license fee hereunder by reason of City’s repossession of the
to it upon such default, nor shall a termination of this Agreement
foll.owing default release Company from liability for the payment of
the license fee as herein provided.
19. yo Nuisances. Company shall not knowingly perform any
acts or carry on any practices upon the Premises which may endanger
or be a nuisance or menace to adjoining property owners and shall
or injure the Premises, Property, or surrounding area or any person
keep the Premises free and clear of debris, rubbish, junk and
garbage.
20. Assisnabak. The Company shall not sub-license this
Qf this Agreement except as allowed herein. The license may be agreement, or otherwise assign any of the benefits or obligations
assigned within the corporate structure of Company with the prior
written consent of City which shall be considered in accordance
with any applicable City ordinances. If Company seeks to make any
assignment outside the corporate structure, that shall also require
the written consent of the City which shall be considered in
accordance with any applicable City ordinances, and if it is made
the City shall be entitled to 90% of the net profit, if any, from
the sale of the license in addition to the License Fee that will
continue to be due per this Agreement, and the City will not have
an obligation to return any consideration that may have been
prepaid. No assignment shall relieve Company of any obligations hereunder. Nothing in this Agreement shall preclude City from
licensing or leasing other space for any purpose to any person or
entity that may be in competition with Company or any other party.
21. Termination of License.
Company shall at its expense, promptly and diligently remove all of
a. Upon termination or expiration of thia Agreement,
the Communications Facilities and any other personal property
or better condition as existed prior to the date of this Agreement,
installed in or on the Premises and leave the Premises in the same
reasonable wear and tear excepted.
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b. If, during the term of this License City determines
that the Property is needed for a special purpose by City or any of
its bureaus or departments, which special purpose would exclude
any party other than City itself, this Licenee, and any extension Company's Communications Facilities and all other similar uses by
months' written notice to Company. thereof, shall be subject to cancellation by City upon six (6) In the event of such
termination, Company shall not be obligated to pay any license fee
hereunder during the period between the date of City' s notice of
termination and the date Company vacates the Property. License
unable to utilize it8 Communication Facilities shall be refunded to
fees the Company paid for any time period on and after it becomes
Company. After the City notifies Company of cancellation, Company
shall remove from the Property all of its Communication Facilities.
c. Company may terminate this Agreement at any time
during the term hereof by providing written notice to City in the
event that either (i) any license, permit or other governmental
approval or authority is cancal.e!d, expires or is withdrawn ox
terminated and Company is no longer authorized to operate its Communication Facilities from the Premises; or (ii) due to changes
no longer able to utilize the Premises for its Communication
in technology or other events beyond Company's control, Company is
Facilities. If Company provides written notice of thie termination
at least one year before the termination date, then Company shall
not be liable to pay a license fee for any time period after the
termination date, and the City shall return to Company the pro-
beyond the termination date. If the Company does not provide
rated amount of any pre-paid license fees for any period of time
written notice of this termination at least one year prior to the
termination date, the Company shall be liable to pay the license
received by the City, and the City shall return to Company the pro-
fee for one year following the date that the written notice was
beyond one year after the written notice was received.
rated amount of any pre-paid license fee for any period of time
22. Securitv for Rem, Company shall provide to City
prior to commencement of the term of this Agreement a performance
bond in the amount of ten thousand dollars ($10,000) , which will be
renewed as necessary, to ensure that the Communications Facilities
will be removed and the Premises restored at termination or
expiration of this Agreement and to ensure Company's performance of
named in the bond and shall choose the bonding company.
all of its obligations under this Agreement. The City will. be
23. Relocu. In the event of unforeseeable and unusual
circumstances, or the City's determination of a need of the
Property for a special use per paragraph 21 (b), City may, once
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b. If, during the term of this License City determines
that the Property is needed for a special purpose by City or any of
its bureaus or departments, which special purpose would exclude
Company's Communications Facilities and all other similar uses by
any party other than City itself, this License, and any extension
thereof, shall be subject to cancellation by City upon six (6)
months' written notice to Company. termination, Company shall not be obligated to pay any license fee
In the event of such
hereunder during the period between the date of City' s notice of
termination and the date Company vacates the Property. License
fees the Company paid for any time period on and after it becomes
unable to utilize its Communication Facilities shall be refunded to
Company. After the City notifies Company of cancellation, Company
shall remove from the Property all of its Communication Facilities.
during the term hereof by providing written notice to City in the
c. Company may terminate this Agreement at any time
event that either (i) any license, permit or other governmental
approval or authority iE canceled, expirea or is withdrawn or
terminated and Company is no longer authorized to operate its
Communication Facilities from the Premises; or (ii) due to changes
in technology or other events beyond Company's control, Company is no longer able to utilize the Premises for its Communication
Facilities. If Company provides written notice of this termination
at least one year before the termination date, then Company shall
not be liable to pay a license fee for any time period after the
termination sate, and the City shall return to Company the pro- rated amount of any pre-paid license fees for any period o€ time
beyond the termination date. If the Company does not provide
written notice of this termination at least one year prior to the
fee for one year following the date that the written notice was termination date, the Company shall be liable to pay the license
received by the City, and tke City shall return to Company the pro-
beyond one year after the written notice was received.
rated amount of any pre-paid license fee for any period of time
22. Securitv for Removal. Company shall provide to City
prior to commencement of the term of this Agreement an irrevocable
letter of credit, in the form attached as Exhibit G, issued by a lender satisfactory to the City in the amount of Fifty Thousand
Dollars ($50,000) to ensure that the Communicatione Facilities will
be removed and the Premises restored at termination or expiration
of this Agreement and to ensure Company's performance of all of its
obligations under this Agreement. The letter shall provide that
City may draw on the letter of credit on written notice specifying
that Company has not complied with this Paragraph or has otherwise
failed to perform one or more of its obligations under this
Agreement.
23. Relocation. In the event of unforeseeable and unusual
circumstances, or the City's determination of a need of the
Property for a special use per paragraph 21 (b), City may, once
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during the term of this Agreement, including any renewal term of
this Agreement, at its option, require Company to relocate the Communications Facilities to another location on the Property, ox,
to other property owned or controlled by City that is located in the general vicinity of the Premises and reasonably suitable for
which new location shall then constitute the Property, Structure Company's communications Facilities, as determined by the Company,
and Premises. City ahall be responsible for 100% of the relocation costs if relocation is required during the first year of the
initial term of this Agreement; 90% of the relocation costs if relocation is required during the second year of the initial term of this Agreement; 80% of the relocation costs if relocation is
required during the third year of the initial term of this
Agreement; 70% of the relocation coets if relocation is required in
the fourth year of the initial term of this Agreement; 60% of the
relocation costs if relocation is required in the fifth year of the
initial term of this Agreement; and none of the relocation costs if
relocation is required after the fifth year of the initial term of
this Agreement. In conncction with any renegotiation of any
or occurrences that may result in relocation during the renewal.
renewal term, City shall advise Company of any anticipated events
term then being negotiated.
24. Beimbureement of Cnsu. Company shall, on demand,
reimburse City for all reasonable costs and expenses of any type
City incurs in connection with this Agreement (including
performance and enforcement of its provisions), the Communications
Facilities, or any City approval required hereunder, including
engineering, legal, and other consulting fees.
25. Resulatorv Filings. Upon City's request, Company shall
provide City with copies of all petitions, applications, reports
and communications submitted by Company to the FCC, Securities and
Exchange Commiseion or any other federal or state regulatory
commission or agency having jurisdiction in respect to any matter
affecting this License or Company's operation of its Communications
Facilities.
26. Survival of Proviuiona. All indemnification obligatione
of Company under this Agreement, including Paragraphs 10(b), 11, 13
and 14, ehall survive the expiration or earlier termination of this
Agreement.
27. Subordination. Company agrees that this Agreement shall
be subject and subordinate to any and all mortgages, including all
extensions, renewals, amendments, and supplements thereto now or
hereafter affecting any part of the Property. Company agrees to
execute and deliver promptly any instrument requested by City or
any mortgagee or trustee to further confirm the subordination of
this Agreement to a particular mortgage, provided that such
agreement contains reasonable consent and attornment provisions to
guaranty Company's continued right to use the Premises in
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accordance with this Agreement in the event that the mortgagee or
trustee takes control of the Property.
28. EstoRvel Certificate. Company shall, at any time and
City, deliver to City a statement in writing certifying that (i)
from time to time upon not less than Ten 110) days prior request by
been modifications, that the Agreement is in full force as modified
this Agreement is unmodified and in full force (or if there have
and identifying the modifications); (ii) the dates to which the
license fee and other charges hereunder have been paid; (iii) so
default under any provisions of this Agreement; and (iv) such other far as the person making the certificate knows, City is not in
matters as City may reasonably request.
Agreement shall limit or interfere with or be construed to limit or
29. No Limitation on Authority. Nothing contained in this
interfere with any of City's rights or powers, including City's
authority in enforcement of its municipal ordinances, including its
zoning code, unless specifically and explicitly granted to Company
in this Agreement contrary to City's rights and powers.
30. Plemorandum of AsreemenL. The parties hereby agree to execute and record a short form memorandum of this Agreement
outlining the basic provisions of this Agreement relating to the
initial term, the Company's renewal options and access rights and
such other basic terms mutually agreed upon by the parties.
31. Amlicable Law and Severabilitv. This Agreement and any
merely choice of law provisions) of the State of Wisconsin. If one
interpretation thereof shall be ruled by the internal laws (not
or more of the terms hereo€ are found to be void or invalid, those
deemed modified to conform to such rule of law, all without terms shall be deemed inoperative and null and void, and shall be
invalidating any of the remaining provisions of this Agreement or
the enforceability thereof, which shall continue in €ull force and
effect .
32. MiSCellaneOUS. This Agreement constitutes the entire
agreement and understanding of the parties, and supersedee all
offers, negotiations, and other agreements of any kind. There are
herein. Any modification of or amendment to this Agreement must be
no representations or understandings of any kind not set forth
in writing and executed by both parties. Company and City
represent that each has full right, power and authority to sign
thie Agreement.
33. potices. All notices hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified
mail, return receipt requested, to the Eollowing address:
If to City, to:
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If to Company, to:
be executed on the date and year first written above.
IN WITNESS WHEREOF, the parties have caused this Agreement to
CITY:
COMPANY ;
CITY OF MUSKEG0
By ;
David L. De Angelis, Mayor
By :
Jean R. Marenda, Clerk
By :
Title:
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