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CCR2001033COMMON COUNCIL - CITY OF MUSKEG0 RESOLUTION #33-2001 OFFER TO PURCHASE - MARTIN Park Arthur Expansion BE IT RESOLVED That the Common Council of the City of Muskego does hereby authorize the execution of the attached Offer to Purchase for the Martin property for the expansion of Park Arthur BE IT FURTHER RESOLVED That the Mayor is authorized to make necessary technical changes, if needed, in consultation with the City Attorney to facilitate timely execution of the Offer and closing documents. BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are authorized to sign the Offer to Purchase, and necessary closing documents, in the name of the City and to extend the acceptance andlor closing dates, if necessary. DATED THIS 13th DAY OF Februaw ,2001 SPONSORED BY: David L. De Angelis, Mayor This is to certify that this is a true and accurate copy of Resolution #33-2001 which was adopted by the Common Council of the City of Muskego. + Cle Treasurer 2/0ljmb FIIg No.184 02/08 '01 PM 01:54 ID:ARO\IZ MOLTER WY FRX:2625489211 PAGE 1 February 8, 2001 VIA FAX TOTAL PAGES: 18 Mayor David L. De AngeJs CITY OF MUSKEG0 P.O. Box 749 Muskego, WI 531 50-0749 Attorney George T Weber WEBER & RICK, S.C. 5859 South 1O8lh Street Hales Corners, WI 531 30-1 939 Re: Gitv ofeaolPark Arthu Gentlemen: This letter and attached Offer is to correct and add to the documents you received per the fax of February 7, 2001. The corrections and additional comments are as follows: FAX #: 679-5630 FAX #: 1-41 4-425-8502 The legal descriptions attached to the Offer with the February 7, 2001 fax are all wrong. That legal is of both Parcel 1 and 2 as to the CSM. Attached to this corrected Offer is the correct legal description. Line 44 as to closing date has not yet been filled in. I pfOpO6e March 20, 2001 As to the Addendum, No. 1, the blank on the contingencies as to the other Buyer has not yet been filled in. I propose February 16, 2001. The Mayor hes advised me that there are no special assessments or contemplated special assessments. As to the taxes, based on my understanding, I have added language at Line 49 (which is additional language on the Addendum as No. 41. FILE No.184 02/08 '01 Pn 0154 ID:AEhQ PlOLTER MACY FRx:2625489211 ARENZ. MOLTER. MACV & RIFFLE. S.C. L.1 OTrICES OF Mayor David L. De Angelis Attorney George T. Weber -2- PC&€ 2 February 8, 2001 I assume before this matter is acted on by the Common Council that the dates referred to above will be completed. Sincerely, ER, MACV & RIFFLE, S.C. " Donald S. Molter, Jr. DSM/pw Attachment CC: Mr. Sean McMullen, Engineering Department fVia Fax #: 679-561 4, 18 Pages) FILE No.184 02/08 '01 Pfl 01:54 1D:AENZ lpQlER WY FRX :X2548921 1 PAGE 3 ~ IO rn THE BALANCE OF PURCHASE PRICE wlll be paid in cash or equivalent at owill be paid wlthln n/a days Of &&~tanCeT II ADDITIONAL ITEMS INCLUDED IN PURCHASE PRICE: Seller shall In unless oVlanw19e pmvlded below. !2 enwrnbrancas. all Rxtuns. as deffnsd at lines 15 - 10 ad an may be 0 on me date of thb Offer. unless excluded at lhe 14, fhe purchase pflm and transfer, free and clear of 13 end me following addlUonal items: None. I& rn ITEMS NOT INCLUDED IN THE PURCHASE PRICE: None. IS A 'Flxlure" 16 denned as an item of property which la phpkally attached #or so closely associeted wlth land a0 as to be treated as part 16 of me real estate. includlng. wlthoul .hilation. physically atlached items not easlly removable wlthotd damage lathe Property. Items 17 sped~ca~~y adapted to the Pmperty,'and items wstomsrily treated 88 flxtures lncludlng but not limited IO all: perennial mpa; garden 18 bulba: plants: shrubs and trans. CAUTION: Annual uups are not Included in the purchase pdce unless oMaIwite agreed 81 llne 13. m Acceptance occurs when all Buyers and %llers have wried an identical copy of the offer. Including signatures on 19mZONING:Sellerreprese~$tmePmperty$zonsd RSE PI separate bvt Mentkal coples olthe Offer. CAUTION: Deadllnas In the mram commonly calculated from rcnphnm. Conslder n whether short hm dwdllner running from oecaplenco provlde odequare Ume for&$ blndins acceptance mdpefimance. 251 DEUMR , CAUIION: Thh Offer may be wllhdraun pdOr M dellvrry Of Me accOphd Offer. a to a Party shall be effective only when accomplished by one of the melhods specified at llnns 27 - 38. Y OF DOCUMENT8 AND WRITTEN NOTICES I Unlessothsrwise.stated in this Offer. dellvery of documentsandwrltIen noUces a a commerclel dellvery sawicu. addressed either Io the Pafly. or io the Party'$ redpient far dellvery designated at 11086 30 or 32 (I any), n (1) By deposltlng the document or wrinen notice postage or fees prepaid In the U.S. Mail or fee9 prepald or charged to an aCCaUnt wlth B lor dellvery lo the ParP/s delivery address at llnes 31 or 33. n This Mer is binding upon both Parties only if a wpy of the accepIed Offer Is dellvered lo Buyer an or 24- 2001 35 (3) iransmlbslw, of the documenlor wriHen notice toie followi& telephone number: 31 Occupancy of the enure Roperty shall b0 glven to Buyer at tie of closing unkss otherwlae pmvlded In thls Off0r (Ilnea : 31) 179.187 or in an addendum par llne 188). lo whlch addm68e6 roaponslblllty for clsarlng the Property of pnonal proparty and debrla. If aopllcable. p Cautlon: Conalder an agremmant If Property i8 curremly leased and lease($) extend beyond cloalng. Seller shall assign Selleta right8 under said 41 lease(8) and trader all sewity deposits and prepaid rentn thereunder to Buyer st cbslng. The tern al the (wMent (ml) aBuygr:C 262 ) 679-5630 !&ler( 414 1 425-8502 ~ ~~~~ ~~ ~ a, Net general real estate taxes shall be prorated based on (the net general real estate taxes for the current year. if know. Othelwlse on rslhenelgeneralreelesletataxeelor~hepre~lngyear)~ See attached Addendum No. 4 SI CAUTION: If prwaUon on tho bask of not gonanl mol esuta taws Is not acceptable (for example. completdbmdlng 41 . Any Inme. taxes or expansee shall amrue to Seller, and be prated. Vlmugh the day prior Io cbslng. 50 ).- 53 or knowledge of ~ndll~on_s_sffectlng the Pmperh/Oltmn6actln (see below) other man thoae idenlfied In Sellets Real Estdle Condilion 56 Report dated 1 1-140 ,which was recebed by Buyer prtor to Buyer signing thb Offer and which Is made a part of lhls Ofh FILE No.184 02/08 '01 Pfl 01:55 1D:MNZ NOLTER MY FAX : 262548921 1 PAGE 4 51 A 'mndian affecting Ma Properly or transadon' Is defined as folbw: 8D (a1 planned or commenced public Improvements wlllch may mutl in 8pecIaI assessme or othewlsa makrlaliy affect ma Property 61 or me present use of the RDperly: 61 (b) Completed or pendlng mesessmenl of the Pmperly for pmpelty tax purpo 61 (c) government agency or mun order rsqUlrlng rapair. alteratbn a Correction M (dl any land division Involving the subjecl Property, for which required slate 6 (e) any pornon of the PmpertV belw tn a 100 year noodplaln. a welland o als hed rnt been obtained: 6 (0 mndtlians canstllutlng a stgnmcant health or safety hazard br Du;upa oning area under local. slate or tederel law: 61 (9) Undergmund of abavegmund stomge lank6 on me Property for sbreg ea gamline and heatlng 011 which are currently or which Were prevlousl le br armbustible liqulds lndudlng bul not limited lo W CMlm 10 confalns rsglrbdon and 0prpUm NIOS &such umund and ato~round srong. fan& on the Properly: NOTE: Wls Ah Cads, Chapfor 1P (h) W.terial violatbns of environmenlal law9 Or other laws or egmements regulatinp the use of the Property: ?I (i) hgh voltage elecbic (100 KV or grew) or steel natural gas lransmlssian lines loceted M but not directly setvlng the PmpeRy; 71 plan or Bnmlld In. or In vblatbn of. a FoM Cmp. WoodlandTfm. Managed Forest, @nssrvalhn Rassrve or mmparaMe ploem; I? (i) any pomn ofthe Propecry belw subjed lo, or In vlol8UOn of, a Fanland Preservabn A(lreement under a County Fmnlarni Preservaton 14 (k) boundary dlspules or materlal vblaUon of fence laws pi$. Slats. Chapler 90) which requlre the erection and maintenence of legal )6 (I) walls on Me Property required to be abandoned under stale regulations (Wl9. Adrn. cads NR i 12.28) butwhich em not @bandonad; li fmCW butkeen EiiJOinlng properties where one or both of the properties Is wad and occupied for fanning or grazing purpdses; n (m) ctslems or septic tank8 on Ihe Pmperty whlch are currently not servicing the Properly; n(n) subsoilcondiUonswhlchwould~~cantlylnwese~~~~davebpmentpmpoaedatlines271-272.Ifany,includbg.butnotllmited m tu, subsurFuce fcundathns. orgmlc or rnimrgrulic NI, dumpd$cl or contdinars on Pmperty whi mnlslnad or amently mnlaln mxic or W(0) a lack bf legal vehicular acc886 to.the Property @om publlc mads; q (p) pdor relmbumment for mrrective eclbn msts under Ma Aghulturat Chernlcal Cleanup Program: (Wis. Stab. 59473.) 0 (q) other mndlUons or occurrencas which would significantly tncrease the cost of the devabpment pmposed at Unes 271 (0 212 or M . . Wuca the value of the Properly lo e reasonable person wurlth knowledge of the riature and scope of the mndltion or octurrenca. 86 or BlloCBtlOn Of acreage Information, provided to Buyer by Seller or by a broker, may be approximale because of mundinp or other NSIONS AND SURVEYS Buyer acknowbdges that my land dimenslons. total square hIage/aueege llgures. 81 masons. unleasvetified by survey or olher means. CAUTION: Buyrrahoutd wtt&hddlmenslons, mtalsqurn bfagdacreaae E9 figurns or rllocatlon of acrorgd Infwmauon Mmatedal to Buytrk daclslon m purrhaso. c3 L ISSUES REB ~~ntu~.~ree~avarieiyofisgUgsWhlCh~o~bearld~toen~u~Ule~~lor~ussisfesslble. hknldpelandzoning TED TO PROPERTY DEVELOPMENf: WARNING If B+r contemplates developlng Pmperly (x a use other than the 81o~ina~,remrdedbuildinganQuseres~s.~luen~andeasementsmaypmhlMtceltalnirnpmvementsoru~sandthar~oreshould a be revlewed. Bullding permits. zonlng variances. Archilechrral ConbDl Commktee apprwals. eathates for utlllly hook-up expenMs. speual 01 e8888M1enm, charges for.iWlatbn of mads or ut11lIia.s. enYlronmente1 audits. subsall WSM. or other development ralntad fees may need OI to be OLNfdnad oi verihed in order to delermlne me leasibiliiy of devebprnsnt of, or a particular use for. a pmperty. OpUonal mntlngancies Rwtlidl albw BU~I to investQate carinln of lhese issues can be lound at lines 271 - 314 end Buyer may add mntingencles a8 needed in %addenda (see llne 188). Buyer should revim any pbrm tor development or use changes lo defermine what i88um should be eddressed 97 in these anti-encies. rn INSPECTIONS: Seller agrees to allow Buyeh inspeaom reasoneble access to the Pmperty upan reasonable notiw if the inspecllons .59 are reasonably necessary -lo satisty the contingencies in this Offer. Buyer agrees lo promptly pmvide coples of 811 such Inspection IRI reports.lo Seller. and 10 IlsUng broker If Pmpedy la Ilsled. Furlhemore, Buyer agrees to promptly rastore the Prom to its original 101 condltbn after Buyeh inspecllons are mrnpleted. unless otherwise agreed in this Offer. An 'inspection' is defined as an observation cqol the Pmperty which does not Include testing of the Pmpefly. other than testing for leaklng LP gas or natural gas used as a fuel source. IO! whlch are hereby authollyed. IW= ~STI~:Exceptasothetwiseprovided.Selle~sau~ri2alionformspeclionsdoesnotauthorizaBuyertoMnd~testlngofUlePmpsrty. IB A 'Wr n defined as the takin0 of samples of materials such as soils. water, air or building maledel6 hom the Pmperty end the laboratory lmor Ohr anaNis of these materials. If Buyer twqulres testlng. lesm contingencies must be rpeclRcalPy probided hr a1 he9 178.187 or 107 In an adrbndum per line 188. Note: Any mntingancy aulhorking testing should spedfy the areas of ba Pmwrty 10 be tested. the purpose W.Of th0 leal. (e& !a detarmlne If envlmnrnsntal mntaminetlon ia present). any llmltetlons on Buyeh lasung and eny other malddal terms 01 10s the contingency (e.g.. Buyer's &dipation to return ma Property to its or!ginal mndlUm). Seller acknowledges that mmin Inspeaiuns or le616 110 ma detect envlmnmanUl pollution which may be requlred lo be reported to the Wlsmnsin Department of Natural Reswrcas. 11% ~REGLOSINGINSPECTION: At a reasonable lime. pre-approved by Seller or Sellets agenl. wllhin 3 days before closing. Buyer shall 111 have the right to inspect me Pmpaq to detennlne thal there has been no significant change In the wnditlon of the Property. except for 711 chsngea approved by Buyer. 114 I PROPERTY D\MA 115 occupancy of Buyer in materlelly UIe same condition as of the date of accaptance of this Offer, except for ordinary wear and tear. If. prior GE BETWEEN ACCEPTANCE AND CLOSING Wlar shall maintain the Property untlt the earlier of closlng or 116 to doelng. the Properly Is damaged in an amount of not Mre lhan five.per cent (5%) oftha salllng prlce, Seller shall be obligated to repBlr 118 promplly notity Buyer In writing of the damage and Ihls'OHer may be canceled at option of Buyer. Should Buyer elect to carry Out th19 117 the Pmpsrty and restore it to the same condition that It was on Um day of thls Offer. If ttie damage shall exceed such sum. Seller shall m the purchase price equal lo the amount of Selleh deductible on such pollcy. However, if this sale Is flpnced by a land contract or a 118 Offer deapite such damage, Buyer shall be entltlad lo the insurance pmceeds relating to the damage to the Propefly. plus a credlt towards page 2 of 5. we-13) 80 har;rdars~ls,hiehgrovduatal,~~[e.Q,bw~baaringcllpedly)or-ive~a~~rmeiheRbp8ny; PROPEFWY DIME .. .. 12 addmaslnn msponslbllity for fences If Proporiy ar aqolnlna land I8 used hnd octupfad for hnnlng OrgraZInQ purporas. 1JS1 DELIVERWRECEIPT I Un&s othewisa slated in this Offer. any slpned document banarnmed ty facslmlle machine (far) shall be treated awrkWa!sigROlyre. Persopal dellvsfy lo. or actual recaipl by, any named hyer or Seller mslitules mnal dalivev to. or actual receipt 12qh ell manner a r~spwcts as an orjina! pocument a.~ ?e signature. of any Party upon a document transmitted by lax shall be eonsidered lMwe%tiilPAr* bl (Ihllateml~reinr~le a conUfibiency'a~b~~n-rnnUrlgBn~~~r~~ b&ncslved & fkiepuWr Pady laby8jjK6r serr(ir. O'hmceived. a nolicecannot b,vMd+n by,h Party dellvepg me ?ti- wltnoulthe wngnt of the Party Felvlne Is ~?.dg.lVolyprovlslar In Ihls Offer mpye:rn#h a~'~pmq'(.:~~~,~.~n~~ls not daotnble (-0 llnw 25:36). ~3I:~&id&biut1or1zatte~nt3~ taha tkthrs~~wpit#ttm ec,apprsisen.~lemcompnm I~~~Fbaer~riiewoe~e membt twbansaHlon as &ind by me ~d E- Semmnt pnsaedrrms rd (RESPA)."' IO P . .. 1% 1s w In .. ,I .. . If7lmelsofthe.Esao~ 131 applles to a data or desdllne. fallq to peiiofhby ths exec1 data of deadllna is contract. If Time is of Vle Essence' does IS MI apply (0 'a data of daadllne,' then perdonnance within a reasonable eadline Is ellowed belore a breach OOEUO). 1ro the day he evmt occumd and by muntlng subeequanl calendar da 141 expressed 88 a apednc number of 'buslnem days' exduda Saturd xpues at rnldnlghl on the last day. ,Deadlines 142 law, and other day deslgnsted by the President such that Vle wrrlal any Mal public hollday under WlSWn8ln or Federal IU on that day. Deadlhes expressed am a 8pscik number of 'hours" hum the OCCUrrenca 01 en avenl. 8wh a6 ~Celpt of a notlca, are not receive reglslered mail or make raQular dellverles IU calculded from ha evd the of the event, end by wunllng 24 hours per calender day. Deadllnes eXPmS8ed as a SWCMc day of the 14 calendar year of (u the day de spaclRc event. such as doslng. explra a1 mldnlpht of that day. 117 SUCH AS WITH AN 3(". .THEY ARE NOT PART OF THIS OFFER IF LINE 148 IS MARKED NIA OR IS NOT MARKED. IS -Deadlimes expd e6 a numberof'daye 88 acceptance, aracslarlatsdbyexaludlng 16 THE FINANCING CONTINGENCY PROWSWNS AT LINES 148 - 162 ARE A PART OF THIS OFFER IF LINE 148 IS MARKED, NCINQCONTINQENCY: ThlsOnerlscont~Q~luponBuyerbelng~ablatoobtalna LOAN PROGRAM C43 SOURCE I Rrst mrlgage bancommltment a8 deecrlbnd below. withln -days of aC€aptance of this iw Offar. The Rnancing selected shen be In an amount of not leas than I for a term of not lesa than- years. MI amortized over not leas than - 152 Monthly payments my atno Include i/iZth of the eshted net annual real estate taxer,'harard hwance prernluma, and privata .years. Inma1 monthly payments of prindpal and Intareai shall not exceed $ 165 &rlgage lnauranw pramlums. The mrtQaQe may MI lndude a prepayment premium. Buyer agrees to pay a loan fee not to exceed 134 1s corn.) If the purchase pdcw under thls Offer is modmad, the financed amount. unless otherwlse pmvlded. shan ba adjusted 96 of the loan. (Loan fee refers to dlmount polnts and/or ban orlglnatlon ha. but DOES NOT include Buyeh other closln~ lsstotheumeperrPn~eofthepurchaseprlceasin~l~mntl~encyandthamonWypaymenIsohailbeadjustedW~~arytomelnteln 157 the term and amorttzatlon stated above. CHECK AN0 COMPLETE APPLICABLE FINANCING PROVISION AT LINE 11 OR 15% 1% 0 FIXED RATE FINANCING The annual nle d Interest shall not excaed 'A. 150 0 ADJUSTABLE RATE FINANCING: ThelnlHol annual Interest rata shall not exceed %. The inilia1 interest reti ahall 160 banxedlar 181 Int~6lrat~dUrlngthemortgagete~shallnotexce~ months. at which tlme the interest rate may be hcreased not more than K per year. The maximum %. Monthlypapnl6of prlndpel and Interest may beaqustsd 1Q to rebd InbreSI Changqa. 163 1Br k$%%%%appilcaUon pmmptly upon requoat by Seller. If Buyer pualfms for the financing des~bed in thls Offer or Other 1 Buyer agree6 lo pay an customary Rnancing wsts (including closing fees). to apply for financhg promptly, and Ins flnaneinp acceptable to Buyer. Buyer agrees to dellvsr lo Seller 0 copy of the wriiten loan commltment m later lhan.the deadline for loan 16 arnmltmenl at line 149. Buyer's dellvery ofa copy of, any vrrlttsn loan commltment'to Seller even If subject to aondltlons) shell rmoatlstytheBuysr'~flnancln~con%ngencyunl.urccompcmkdbyano~wdunrccoptablllty. b UTIofJ:BuvERBvvER'SsLENoERNOER 1m ANOAQENTS OFBUMR OR SELLER SHOULD NOTDELIERA LOAN COMMITMENTTO SELLER WITHOUTBUYER'S PRIOR If4 APPROVAL OR UNLESS ACCOMPANIED BY A NOTICE OF UNACCEPTABIUTY. tm SF1 LER TFRMlNATlON R 171 dallvem a wrlllen ndlce of !%%Ion to Buyer prlor to SeIIeh actual rewtpt of a copy of Buyeh written loan commltment. ' If Buys dues not make Urnsly dellvery of said cornmibnent. Seller may termlnate mls mer If Seller in FINANCING UNAVAll AB : If Rnancing Is not available on he terms 8latsd In thl8 Ofler (end Buyer ha8 mt already dallvered an ln acceptable loen mrnmllnle%r other finandng to Sellar). Buyer shall promptly deliver writlsn notice to Seller of same lnClUdlng coplee 174 of lender@)' rajectlon letter(8) or other evldenw of unavnilablllly. .Unlae8 a specMc loan wuru Ls named In this Offer. Seller shall then 175 heve 10 days to glve Buyer wtittan MU- of SeiIeta deciclion to finance lhle waneactbn on Ihe same tam8 set forlh in his O(l6r aud lhls lBOnerahallremabrlnfullforu,andeff~wlUltheUmafordoslngextendedsocardlngly. IfSell~snoUcalsnotUmelygiven,thiaOflershall in be null and vold. Buyer authorizes Seller to obtain any mdll infomallon reasonably appmprlate to dalemlne Buyer's credll worthlners tm for Sellar flnenclng. 091 ADO~ONALPROY~~~ON~I~~ 1 see attached additional COntinqeIICieS .On Addendum. FILE No.184 02/08 '01 Pn 01:56 1D:NhlZ flOLTER IACY PAC+ 6 +including gap coverage 107 m' F T N : Mler ahall ohre evldence of !Me In the form of an wets pollcy of Utle lnauran In the amount of the ~age4of5.WB13 106 pumTA foni iaiud by en insurer Ilcensed to WINE tllle hewance In WIsamsirfdCAUTION: IF mLE E EFFECTIVE DATE OF THE TITLE 1~s the Ume for cloaino shall be ekmded a8 nBc8ssary for mls purpocle. In the even1 that Seller ia unable to remove raid obiectlons. 8uyer nqahaU have 5 days fmm recelpl of notlce mereef. to dellver wrltlen notice waivino the obledlons. and the tlme for dosina shall be extended n1 aWrdlnQly. If Buyer does notwabatheobJectlon8, this Offer shell be null andvoid. Providing CUe evldence acceptable fordoslng does ZIY not extlngukh Sellets obllgationa to give merchanbble tnle lo Buyer. 213 1 mClAl ASSFSSME Zltpeid by Seller ng leter than closlng. All other specla1 asseaamnb shall be pald by Buyer. CAUTION: Contldrrr cpeclrl8g~omen! NTS: Special a88easmenta. H any. for work actunlly mmmenced or levled prior to date ol lhls Ofler shall be 216~.mururmr~~pmp~ow~~~~gclatfonr~rssmenborothrrrexp~nsurnc0nhrnpl~bd. 'OLherexpeneea'areone. 216 Urn Charge8 or onpolng use feaa for publlc Impmvemems (other than those resulting In epeclal assessmenk) ralstlng to CurD.guHer, tll a&& kldewelk. Fnilatary snd atomater'end slorm8ewer (Induding all eewermahsandhook-up end Inlerceptorblarges), pnrk8,shwt ~f~.~orother.publlcfadllties. as deflned In Wls. Slat. 5 88.55(l)(c) B (0. , lncludlng any amendmenla to I& conbins the sntlre agreemt of me Buyer.and Seller reprdlng the .and dlecusdone-have beenmegad inlo thls Mer. Thls agreement blnds and Inures to the benem of iil ha Psruecl to thls Mer and thelr succ88wra in intereat. al duty to uw good falth and due dillgence In wmpletino the lens end wndhns of mi8 Mer. A Btlon under thla Oner Is a default whlch may subjecl lhe defaulting party to llablllty for damages or 216 olher Ispal remedles. zk (2) termlnale me'Oker and have the opHan to: (a) requed the'earndat money as Lquidated damages; or (b) dlreet Bmker 0 return z?o' the earnest money and:have the optbn to sue for actual damages. m' tf'aller dm. Buyer may: 2n (1) EVB for apecMc performance; or zn (2) Ierrirlnate the Offer and request the return of me earnest money, sue for actual damages, or both. m In addltlon. the Partleo may seek any omer remedies evellable in Inw or equlty. 2s dlsuetlon ol the mum. If elther Party defaults. me Paltles may renegonate the Wer or seek nonjudicial dlspule re8olullOn lnslead of m The PaMes understend lhel (he avallabllky of any JUdld8l remedy will depend upon the circumstances 01 Ihe slluallon and the 210 the remedles outllned ebove, Bv eoreeino to blndlm ahltrstbn. the Partlea mav lose lhe riahl to litiale in a mull of law those diswIe6 m mv@I by'the arbliraUon a~re&nt. - ty~ NOTE .IF ACCEPTED, THIS OFFER C~N CREATE'A LEWLY'ENFORCEABLE CONTRACT. BOTH PARTIES SHOULD READ - I I .. 2sTHIS DOCUMENT CAREFULLY 'BROKERS MAY PROVIDE AGENERALWPLANATIONOFTHE PROVlSlONSOF.THE OFFER BUT 24 ARE PROHIBITED BY LAW FROM GIVING ADVICE OR OPINIONS CONCERNING YOUR LEGAL RIGHTS UNDER THIS OFFER OR X1 HOW TITLE SHOULD BE TAKEN AT CLOSING. AN AlTORNEY SHOULD BE CONSULTED IF LEGAL ADVICE IS,NEEDED. eMae agreed. earnesl mnsy ahall be psld la and held In me l~~sl0c~oum of the llstlng broker (buyeh agent u1 n.Pm rty Is not llsted or seiler I no broker 18 inwlved); untll ~pplled lo purchaae' prlw or olhsrwlee dlsbursed as provided in the Offer. W CAU r ON: Should penon. ofher wan r bmkwhold eamort money, an etomw agnmenl should k drafted by the Parilrr moono other than Buyor mekea payment of wrnect money. conslder a ,rp.clal dlsbursernent .glPomOni ry lnstltutlon n eernest money is pald by check) to the person(s) &IO pald the earnest money. AI dosing, earnest If negotiations do not result h an.atcepted offer, the earnest money shail be promptly dlsbursed (afler cloamnce ~~moneyshellbedleburaedavaKll~tcthecloslngstatement Ithle~~~esnotdose.theeameslmoneyshallbedisburseda~rd~~~ 2b9 lo a wtit@n dlabu~emenr agrement slgned by all Perties to this Offer (Note: Wk. Adm:Code g RL lB.OQ(l)(b) pmvldes that en' Offer 261 to purchasela not a written dlsbursemanlagreement pursuant to whkh the bmker my dlsburae). H sald dlsbursement agreement has 82,nol,been delivered b~ bder wlthln 60 days aher the date set for closing, broker may disburse the earnest money: (1) as directed by 253 an imomey "a has 'reV1ewe.d the transacliorl'and does nor represen1 Buyer or Seller; (2) inlo a wurt hearlng a IawGuIt InVOlVlng the m Wne8l money and all Perties twlhls Offer: (3) as dlreded by wurt order. or (4) any other dlrbumemenl requlmd or allowed by law. 25s Broker may relain legal sewices lo dlred dlsbunement per (1 )or m Rle an interpbader action:per (2) and broker may deduct horn lhe 2 ,p:.IL.-. .d., ..I " FIE No.184 02/08 '01 Ptl 01:57 1D:ARENZ tlOLTER tlACY FW:2625489211 PAGE 7 a6(PROPERTYADDRE88: See attached legal description W- boa m.* co.. 110. X4 OPTIONAL PROYISIONO: THE PAMGWHS AT LINES 274 - 314 WHICH AR@ PRECEDED BY A BOX ARE A PART OF lHl0 OFFER IF (PWe%lfs.W13] 0 Em PROPOBEO USE CONTINGENCY! Buyer is purchasicg the property for the purppse of: MARKED. SUCH AS Wmc AN 1'. THEY ARE NOT PART OF Tttl8 OFFER IF MARKED NIA OR ARE LEFT BUNK. nc coniiiion which would make Um proposed development imposslble or me mstS of such deielopment. . n1 replie system kx finsen pmposad use of Property: e.g.. three 278 bedrWm Single famlb home] meet Bppllcable codes in effat as of the date of this offer. An acceplabb systrrrn includes all systems approved 2n far use by the State for me type of propel* ldenlified at line 277. An acceptable system does not include a holding tank, privy. cornposting ZM toilet or chemical toilet or other ByBterno (e.@ mound system) exduded In addlUonal provisions or an addendum per lines 179 ~ 188. 11 0 &pies at (Buyeh)(Selleh)LQTRlKEexpense of all publleand pdvate easements. cDvenan1s and restnctionsanecting the nn Property and a wrinen detemlneUon by e qualined independent third party that none of these prohibit or signlficanlly delay or lncreage 783 the msts of the pmposed uae or development Identifled at llnm 271 to 272. 2Bl Permits. approvals and licenses, as appropriate. or the flnal discretionery acUon by the granting authority prior to the Issuence mof such permits. approvals and licenses at (Buyeh)(Salleh) expense for Ihe fallowing Items related to the proposed 28~ development r m7 0 wmen evidence at (~uyefaj(Se~lets) -1expense that the following utility connections are locatad as follows ( e.g.. m on the Properly, at the lot llne across the street. etc.): electrlclly .gas :sewer 83 mis pmpo6ed use contingency shall be deemed satisfled unless Buyer wlthln days of acceptance dellvers a1 wrilten MUW to Seller specifying those items of VIIS contlngencywhich cannot be satisfled and wriHen evidence substantlaUng why each a2 specific item included in Buyer's notiw cannot be satlsned. m~~POFTHEPROPERPI:This~riamntingentupon(~Sellerprwidlng)~~~~amapofUlePmpe~prepared ?p( by a registered lend surveyor, within 20 days of acceptance, at seller's)^ 196 dawlpllon of the Pmpeily. the Pmpeml's boundaries and dimenslons. visible enaoachmenls upon Ita Ptuperty. the IXaUon Of impmvements. expense. The map shall identify be legal na whwl may be added indude. but am not limited to: spedfying how ourrent the mp must be; staking of all corners of the Pmperly: Identtfylng .ISTRIKE AND COMPLETE I\S APPLIULE J~dona~mapfeaturae ~psdedicaledanda~arent~aeeul,btdlrnsnsionr,totalacreageorsqusrelaatage,easementoorrlghls-of-wey.CAUTION: ConsMorUlecost am and the mod hmap h.fus boo 6elecUng Uwm. The map shall $how no aigniflcanl envoachmenl(s) or any informaUon metedally XII inconsistent with any prior representations to Buyer. Thls oantlngency ahall be deemed satisfied unless Buyer. within live days of the earller 101 of m map and e mn rnh "ch mantilea me slgnificam enaoachment or me Information materialiy imnsistenlwlth prlor representah. 1I1of1)Buye~sreceiptofthemap,or2)thedeedllne~rdellue~ofwidmap,deliventoSeller,andiclilrtingbmker~Pmpertyis1161ed,ampy I(U#WSPECTION CONTINGENCY: This Offer is contingent upon a quellfled independentinspector(9) conduclilg an InSpeCtlOn(3). at JOL Buyah expense. of the Property and 337 unless Buyer within days of acceptance dellvers to Seller, end to listing broker if Property is listed. a copy of the Inapectoh m wmen ine ctlon repall and a wrlltan noUce llsting the defects identtfled in the re rt to whlch Bu er objecte. This Oner shall be null and mvoid upon &~y delivery of me abve now and repon. MUTION: 4 pmposoXrrendmontwh notsaur~ mls noucce mrnont 3ta Buyer shall order the Inapedon and be responslble for all costs of Inepectbn. includln an lnspeclbns requlred by lender or "R, lbwu to 311lnsgeaion. Note:Thiswnti encyoniysuthorlzealns~ng.~ttesbng,seellnes88~1~~.For~epurposesoflh1smnUngencya~t 312 is enned a8 any mndltlon~ the Property which mnslitutes a 01 nlrlc.anl threat la the heam or Safeiy of mns who occu y or -1) Be 311 Property or lves aviden- of an materlal use. story or dlsposafof ha~BldWsortOXicsubstanCBson the v tu rrY Deteds db not Include 314 conditions 61, nature and r f whlch Buyer ha adual knowlfd or w 283 ;water ;telephone ;other raUrny.and.~l lp a certified survey map. 3w which discloses no defects asdeflned below. Thiscontlngency shall bedeemedaatisfied Bcf!"~ Id.teIby(LlcenreeandFi,,~na~~Sn~~~~~~!~~~~~~cer,MacY~Riff~e,, 1n EARNEST MONEY RECEIPT Broker acknowledges receipt of earnest money e$ per llne 8 of Ihe abve Offer, (9ee Ilnos 242 - 267) 311 322 SELLER ACCEPT6 THIS OFFER THE WARRANTIES. REPRESENTATIONS AND COVENANTS MADE IN THIS OFFER SURVIVE CLOSINO AND 111 HEREIN AND ACKNOWLEDOES RECEIPT OF A COPY OF TnlS OFFER. Bmksr (By) nl TnE CONVEYANCE OF THE PROPERTY. B~UER AQREES TO CONVEY WE PROPERTY ON TnE TERMS AND CONDITIONE AS ET FORTH la slpnotunr Nam ~a. . LcneL E. marc- Said Secudly No.- (X) FIE No.184 02/08 '01 Pfl 01:s 1D:ARENZ NOLTER flACY FAX : 26%489?11 PAGE 8 PARKARTHUR MARTIN PROPERN Legal Descrlptlon Parcel 2 of Proposed That part of Wd Southwet !4 of thm Northonst % of Suction 4, Town 5 North. Range 20E, in me City of Muskago, WaukwRa County, Wlacanain. bounded and described na follo~r: West along the Wart Ilne of said X don 782.4 tSa to a point; thence No& 88' 36' 24' Eaat panllrf with tho South lino of aald $4 wctIon 415.62 faat ta the Csntellke d Martin Drful and thm polnt of beginning of land8 being dacrlbod: thonca Nanh 59'24'00' West along sald wntdlna 200.00 foot to a polnt; thence No~th 30'38'0r East 246.00 met to a vim thence South 59'24'00' East 200.00 faat a polnt thona South 30'36'00' Woat 248.00 fmt to a point on VIu wntodlno of Martln.Drive; Daid poim king me ~Iac8 of tmglnnirql. Land8 dencribud contalnlng 42,600 Muan faat 0.9700 Acm Commrndng at b Souttwwt comer of the Northeast !4 of &don 4, thmca Narth 00'38'15. FILE No.184 02/08 '01 Ptl 01:58 ID:rX3l2 lPaTER tlACY FAX : 262548921 1 Pa 9 1 Seller's obligation to close this transaction is other Buyer not closing on or before 2. Buyer's obligation to close this transaction is contingent on Buyer obtaining, at Buyer's expense, an environmental audit of the property satisfactory to Buyer on or before 25 days after acceptance of this Offer or Buyer waiving, in writing, this contingency within that time. If either of these contingencies referenced at Nos. 1 and 2 above are not satisfied, this 07fer is null end void. 3. Seller shall execute the original of all attached documents on or before closing other than legal description and Addendum. 4. Add at Line 49: ". . . specifically as follows: based on the attached tax bill, said tax for the prior year of $1,798.59 shall be divided between land value and improvement value based on the assessed valuation and that portion attributable to land value shall be prorated between the acres remaining from the total 34.83 acres and those acres subject to this Offer and then prorated between the Buyer and Seller to the date of closing." 82/07/2801 12:2d 262-673-5630 MVO5 OFFICE psi - s287 M06 Lu34 2000 PROPERTY TAX COLLECTION STATUS 09:51:24 02/07/2001 PElTRXN __ CITY OF NUSKEGO Corn MSXC Type R Key 2173991 "C=~CC"==="Y"e=""~"""~"=.."~"="""""-="~ Responalble Party Grs Gen Tax ETHEL E MARTIN 1,877.29 S65W17844 MARTIN DR School Cr 161. lOCR Net Gen Tax MUSICEGO Wf 53150 Net Rate/H RENSE/REC 1,716.19 20.9804 Net Tax Due Tat1 Tax Pd Real Property Line 01 of 14 prop Addr 965~11844 TIN DR Balance Due 0.00 Assessed 41,400 81,800 2nd 04/30/01 Total 1st 01/31/01 654.59 WKT 0.9049 45,800 90.500 3rd 07/31/01 172.00 572,OO Paid By oats Amount Receipt Bat NSF Land HARTIN ETH 12/28/00 1,798.53 267638 025 *'* END OF REPORT *** FILE No.184 02/08 '01 Pn 01:59 1D:AREW lZOLTER WCY FAX : 262548921 1 PAGE 11 ADMISSION OF Due Service of a CERTIFICATE OF COMPENSATION & NOTICE OF RIGHT TO APPEAL THE AMOUNT OF COMPENSATION PURSUANT TO WECONSIN STATUTE 532.06(2a) Admitted this - day of , 2001. ETHEL E. MARTIN FILE No.184 02/08 '01 Ptl 01:59 1D:AREW MOLTER tlACY FAX 2625489211 PAGE 12 NOTICE OF RIGHT TO AMOUNT OF COMPENSATION PU TO WISCONSIN STATUTE 5 AS TO PARK ACQUlSlTl Any person named in the Certificate of Compensation. a copy of which is attached hereto, may within six (6) months after the date of recording of said Certificate. appeal from the amount of compensation therein stated in the manner by filing a petition with a Judge of the Circuit Court for Waukesha County, Wisconsin for proceeding to determine the amount of just compensation in accordance with Wisconsin Statute §32.06(71. For purposes of any such appeal, the amount of compensation stated in the Certificate shall be treated as the award and the date the conveyance is recorded shall be treated as the date of taking and the date of evaluation. Dated this day of , 2001. CITY OF MUSKEG0 DAVID L. DE ANGELIS, Mayor ATTEST: JEAN K. MARENDA, Clerk FIE No.184 02/08 '01 Ptl 01:s 1D:ARMZ tIOLTER MY FAX : 262548921 1 PAGE 13 11 Document No. Pursuant to Wisconsin Statute 432.0612a1, this document shall be recorded with the Waukesha County Register of Deeds, Waukesha, Wisconsin. That the City of Muskego has acquired fee simple title in the property described below pursuant to 532.06 of the Wisconsin Statures. 1. The identity of..all persons having an interest of record in the property immediately prior to its conveyance is as follows: Ethel E. Martin, a Single Person 2. The legal description of the property in which fee simple title was acquired is as follows: SEE ATTACHED LEGAL DESCRIPTION MARKED EXHIBIT "A" Tax Key Number 3. The matter of the interest acquired and the compensation for such acquisition is as follows: The matter of the interest acquired is fee simple titla for park purposes. The amount of compensation is $57,450.00. Dated this - day of , 2001 CITY OF MUSKEG0 ATTEST: Jean K. Marenda, Clerk This Instrument Was Drafted by: ARENZ. MOLTER, MACY & RIFFLE, S.C. Attorney Donald 5. Molter, Jr. 720 N. East Avenue, P.O. Box 1348 Waukesha, WI 531 87-1 348 David L. De Angeiir, Mayor CITY SEAL FILE No.184 02/08 '01 Ptl 01:s 1D:CRENZ VOLTER NACY FAX : 26254W11 PFIGE 14 That part of tho Southmat X of the Northeast % of Sodion 4, Town 5 North. Range ZOE, in the City of Muskago, Waukatka County, Wlsanain, bounded and domibed as follom: West along the Weat line afraid X aedion 782.40 feet to a point; thence North 88' 36' 24' East parallel with tho South line of said % lsctfon 415.62 feet to the wntetilns of Martln Drive and the polmt of bsglnnlng of land@ Wng deadbed; thenca North 69'24'00' WeeI along raid cdnt"m 200.00 foot to a polnt; tnence North W36W East 248.00 taet to a point; thence Soutn 59'2404 Eat 200.00 feet to a point; hna South 30'38'00' Wwt 246.00 hot to a point on the antrrllno of Mdn Drive; mid point king the plecs of kglnnlng. Lands described Gontaining 42.600 square feet. 0.97Bo Acrrra Commencing at the So- mer of tho Northeest % of Sedan 4, hna North 00'38'45 FILE No.184 02/08 '01 PM 02:OO ID:ARENZ MOLTER NACY FAX : 262548921 1 & APPROVA Owner: Ethel E. Martin, a Single Person Acquisition of: See Attached Legal Description Interest Acquired: Fee Simple Title for Park Purposes PAM 15 The undersigned owner of land designated as in the attached legal description, containing approximately 0.9780 acres, agrees to accept settlement in the amount of Fifty-Seven Thousand Four Hundred Fifty and No1100 1957,450.00) Dollers as full payment for the fee simple title stated, subject to the approvsl of the City of Muskego. The undersigned owner has been fully informed of the right to have the property appraised, and to receive just compensation based upon an appraisal, has decided to waive the right to an appraisal. The undersigned owner further states that the deciaion to waive such right to an appraisal was made without undue influence or coercive action of any nature. It is intended that the instrument of conveyance will be executed upon presentation by the City of Muskego, agents or representatives. Dated this - day of , 2001. ETHEL E. MARTIN FIG No. 184 @/08 '01 Pfl 02:oO 1D:ARENZ PIOLTER IACY FAX : 262548921 1 PAGE 16 PARKARTHUR MARTIN PROPWIY Parcel 2 of Proposed mat port of the Soauthwut % of the Northeast Y. of Saction 4, Town 5 North. Range 20E. in the City of Muskego, W8ukmha County, Wheanain, bounded and dsscrlbsd 80 folk Cornmmnclng at Uw Southwot comer of tho N&w Y. of adon 4, thanm North OQ38'45' Wwt along the Wmt Ilna of said % sadion 782.4 feui to a point; hsnw North 88' 30' 24' East plld with the South lina of uid % loctlon 415.62 ket to the corrterllne of Mertfn Drhn an8 ha polnt of bglnnlng of lands bang dasvlbe$ thenca North 5%'24'00' West along sald W&lne 200.00 foe! to a pol* mna North W'WW Eat 246.00 feet to a point; thence South 59w'OV East 200.00 hat to a point' thana South 30'36'W W.rt 246.00 for( to a point on the cmntorllne of Martln Drhre; mid point klng me plea of baglnnlpg, Landa doemibed containing 42,600 squan bet. 0.8780 Acree .. FIE No.184 02/08 '01 Pn 02:OO 1D:ARWZ KLTER MY FRX :2625489211 .. WAIVER OF APPEAL RIGHT AMOUNT OF TO WISCONSIN STA PAGE 17 For valuable consideration, hereby acknowledged by the undersigned, I hereby waive any and all rights that I may have to appeal the award of cornpensarion made under Wisconsin Statute 532.06. Dated this - day of , 2001. ETHEL E. MARTIN FILE No.184 02/08 '01 Pn 02:oO ID:&ENZ NOLTER RACY FAX : 262548921 1 -. .. PAGE 18 For valuable consideration, hereby acknowledged by the undersigned. I hereby waive any and all rights that I may have to any relocation benefits or other similar benefits pursuant to Chapter 32 of the Wisconsin Statutes. 7 Dated this - day of , 2001. r ETHEL E. MARTIN Ll CERTIFIED SURVEY MAP NO. That pari of the Southwest 114 of the Northeast 114 of Section 4, Town 5 North. Range 20 East, in he City of Muskego. Waukesha County. State of Wisconsin. Page 1 of '3 Pages PARK ARTHUR MARTIN PROPERTY Legal Description Parcel 2 of Proposed CSM That part of the Southwest X of the Northeast % of Section 4, Town 5 North, Range 20E, in the City of Muskego, Waukesha County, Wisconsin, bounded and described as follows: Commencing at the Southwest corner of the Northeast % of Section 4, thence North Oo"38'45" West along the West line of said % section 782.40 feet to a point; thence North 88" 36' 24 East parallel with the South line of said X section 415.62 feet to the centerline of Martin Drive and the point of beginning of lands being described; thence North 59"24'00" West along said centerline 200.00 feet to a point; thence North 30"36'00 East 246.00 feet to a point; thence South 59"24'00" East 200.00 feet to a point; thence South 30"36'00 West 246.00 feet to a point on the centerline of Martin Drive; said point being the place of beginning. Lands described containing 42,600 square feet, 0.9780 Acres Written by Sean E. McMullen 2/7/01 r LICENSE AGREEMENT BETWEEN CITY OF MUSKEG0 AND VOICESTREAM PCS I1 CORPORATION WATER TOWER SITE License Agreement dated , 2001, by and between City of Muskego ("CityNillageiTown") and Voicestream PCS II Corporation, wlth its principal office at N19 W24075 Rivenvood Drive, Suite 100, Waukesha, Wisconsin, 53188 ("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 construct, install, maintain and operate on the Property certain communications facilities described in 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 BOW, CITY AND COMPANY AGREE AS FOLLOWS: 1. Recitals. The Recitals are incorporated and form a part of this Agreement 2. License. City hereby grants Company a nonexclusive license to construct, install, maintain, and operate 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 Property, in the specific location designated on construction plans and drawings approved by City (the "Premises"), which shall be attached hereto and incorporated herein as Exhibit C. Said plans, shown in Exhibit C, shall specifically describe, in addition to the general construction necessary and required by City Engineer, arrangements for taking the tank out of service and drawing down the water level prior to installation; (2) Tank penetration and reinforcement issues; (3) Separate electrical grounding; (4) Clearly stated welding requirements; (5) Mounting requirements (size, location) as to brackets, cables, etc., so as not to interfere with future painting and maintenance; (6) Procedures and requirements for damage repair, which shall include but not be limited to repair of paint that is damaged outside and inside the tank during the installation; (7) Procedures for temporary removal of the facilities and for permanent removal of the facilities; and (8) Compliance with pertinent industry standards (if any). Exhibit C, including all such plan details, shall be subject to the approval of the City, upon recommendation of the City Engineer, the City Utilitles Superintendent, and the City's Consulting Engineers, prior to this Agreement being effective. 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 the 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. I I plans, all of the following regarding installation of the Communications Facilities: (1) If 0 1 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 othenvise terminated except by expiration of its terms or as provided in this Agreement. 3. Term. a. The initial term of this Agreement shall be for a period of five (5) years, commencing on the earlier of ninety (90) days of this Agreement or the issuance of a building permit (the "Commencement Date"), and ending on the fifth anniversary thereof. At any time prior to the Commencement Date, the Company shall have the right to provide written notice of termination without the obligation to pay any license fees. After 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. 4. License Fees Per Site. a. Durine the first yearofmpanv shall Dav ~~ Citv an annual license fee of $15.600. Durine the initial term and anv renewal term. the annual license - fee shall be increased bv 5% over the-license fee in effect the immediately urecedinp. vear. Such b. In the event that Company fails to timely pay the license fee, Company 0 shall pay to City a late fee on the total payment due of 3% per month. C. A11 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 personal property taxes, if any, assessed against the Company's equipment located on the Property, and all insurance premiums, maintenance charges and any other charges, costs and expenses against the Property contemplated under any provision of this Agreement for operation of the Communications Facilities on the Structure. d. 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. 5. Compliance with Laws and Emission Standards. Throughout the term of this Agreement, Company shall continuously use the Premises for the purpose of constructing, 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"). Company, at its expense, shall diligently, faithfully and promptly obey and comply with all federal, state 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 Human Exposure to Radio 0 L Frequency electromagnetic Fields" as set forth in the current ANSI standard of 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, Company shall be required to comply with the most restrictive standards. 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, and maintain the Communications Facilities on the Premises. Company is explicitly forbidden from cutting or welding on the structure without prior approval from the City. Whenever work is performed on the structure there shall be a full time inspector present unless waived by the City Engineer. The City shall select the inspector, and the fees of the inspector shall be paid by the Company. 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 before such contractor performs work on the Premises, which approval shall not be unreasonably withheld, conditioned or delayed. 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 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 D. c. Any damage done to the Property during installation or during operations, which is due to the Company's intentional or negligent acts or omissions, shall be immediately repaired at Company's cost and to City's satisfaction. Company shall pay all costs and expenses in relation to maintaining the structural integrity of any Structure to the extent such costs and expenses arise out of Company's installation and 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. 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. Upon 3 initial installation and the installation of any improvement to the Communications Facilities, City reserves the right to require Company to paint the Communications Facilities or shield the Communications Facilities from view and take such other reasonable and appropriate action as City, in good faith, determines necessary to minimize aesthetic impact, so long as such requirements do not have a material impact Company's signal strength. e. Company shall separately meter charges for the consumption of electricity and any other utilities associated with its use of the Premises and shall pay all costs associated therewith. f. Company, at its expense, shall have sole responsibility for the maintenance, repair, and security of its Communications Facilities and shall keep the same in good repair and condition during the term of this Agreement. g. A landscaping plan for the site shall be proposed by Company and approved by City prior to the Commencement Date. Company, at its expense, shall install and maintain its 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 (45) 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 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 in the manner described in Exhibit C 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 in the same manner as required for the initial installation as described in Paragraph 6(a), above, and as described in Exhibit C (unless specifically modified pursuant to Paragraph 7), 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 Communications Facilities. The contractor will then bid on the cost of painting the Shucture with the Company's antennas left in place. The contractor will then proceed to paint the Structure with Company's antennas left in place. Company shall reimburse City for the difference between the two bids. 0 1. Any reasonable additional costs for servicing or maintaining any Structure that are due to the presence of the Communications Facilities, including additional driveway asphalt and snow plowinglice control, shall be the responsibility of Company and shall be paid by Company within 30 days after receipt of an itemized invoice. Company shall abate or remove graffiti from the Communications Facilities within thirty (30) days of City's written notice regarding same. J. Company is prohibited from commencing the operation of the Communication Facilities until the installation and all restoration of the site is completed, and the City Engineer has approved the same in writing. a 7 Modifications. Company shall not make any material additions, alterations or 4 0 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 requested material additions, alterations or improvements as per the City’s usual policies and practices. Company shall submit to City a proposal 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, 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 ordinances. On making such modifications, Company shall provide to City updated “as built” planning and engineering drawings as specified in paragraph 6(b). Modifications that result in additional visible equipment on the Structure 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. In the event that the City and Company do not agree on the amount of an appropriate increased license fee, City and 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 increased license fee shall be paid 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 shall have the right to (i) make material additions, alterations or improvements 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. 0 In the event the Communications Facilities or any portion thereof are removed from the Structure at any time, for any reason, then the City shall have the ability to require modification of the installation plans shown in Exhibit C regarding the re-installation of the Communications Facilities. Company shall comply with all such modifications at Company’s expense. In the event Company concludes that the modification is not acceptable due to engineering concerns or due to the cost being unreasonably disproportionate to the benefit, and the Company and the City are unable to reach agreement, then the matter 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. The arbitrator shall determine (1) whether the proposed modification provides the same or better ability to attach and operate the Communications Facilities on the Structure, as does the original plan; and (2) whether the cost of the modification is unreasonably disproportionate to the benefit. If the answer to issue (I) is in the affirmative, and issue (2) in the negative, the modification shall be required. If the answer to issue (1) is in the affirmative, and issue (2) in the affirmative, then the arbitrator shall determine a reasonable amount that shall be required for Company to pay if the modification were required, and the City, at its option, may agree to pay the balance and require the modification. In all other cases, the modification shall not be required, and the re-installation shall be done at Company’s expense in accordance with the plans existing prior to the proposed modification. 8. Studies. Prior to approving any installation under Paragraph 6 or modification under Paragraph 7, Company shall provide studies consistent with Federal requirements and the Company's license obligations to determine whether Company's proposed installation or modification will interfere with the electronic equipment of City, other licensees of the City, or nearby property owners. Prior to the installation of any equipment on the Structure pursuant to Paragraph 6 and prior to the installation on the Structure pursuant to Paragraph 7 of any additional equipment or replacement equipment which is significantly greater in size, weight 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 affect the structural integrity of any part of the Structure. Upon City's request, Company will pay for an independent review of that structural engineering 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 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 shall have unlimited and exclusive access to all parts of the 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. 0 C. Company shall supply to the City a list of mes 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 as a Designated Professional at the time access is required. d. If Company or a Designated Professional requires access to the Structure or any part thereof, Company shall contact Public Works Department at the following telephone number: (414) 679-4128 (after business hours, Company shall call (414) 6794130). Company shall, on demand, 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. e. Company shall admit City, its employees or its agents, to any part of the Premises used or occupied by the Company upon reasonable notice. 10. Interference. a. Company's installation, operation, and use of the Communications Facilities 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 necessary, in its sole discretion, to repair, maintain, alter, or improve the Property. City agrees to give reasonable advance notice of such activities to Company and to 6 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 which requires the removal of the Company's antennas or other equipment from the Structure or is likely to interfere with Company's transmission operations shall be completed in accordance with Paragraph 6(h) above. b. Company warrants and represents that the Communications Facilities and the installation, operation and maintenance of the Communications 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 existing City Licensees, Company shall promptly investigate the same, at its expense. If investigation reveals that the Company is causing the interference, Company shall promptly take all steps necessary to eliminate the interference 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 Communications Facilities from the Property. Upon such termination, Company's further liability shall be determined in accordance with Paragraph 21(c). Notwithstanding the foregoing, City shall d~ligently 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. 0 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 Property or utilities serving the Property, if any, are fit for Company's intended use and all such warranties 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 IO@) and that City shall enforce such provision in a nondiscriminatory manner with respect to all of its licensees. 11. Insurance. a. General. At all times during the 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 VII size or larger. Such insurance shall be primary. All contractors and all of their subcontractors, not protected under Company's insurance, who perform work on the Property shall carry, in full force and effect, worker's compensation, commercial general liability and automobile liability insurance coverages of the type the Company is required to obtain under this paragraph with the same limits. Prior to the execution of this Agreement and prior to each insurance policy expiration date during the term of this Agreement, Company will furnish City with a Certificate of Insurance. The Certificate shall reference this Agreement and worker's compensation and property insurance waivers of subrogation required by this Agreement. City will be given thirty (30) days advance notice of cancellation or non-renewal 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 7 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 claims-made basis. All policies may be written with deductibles, not to exceed $100,000. Company shall defend, indemnify and hold harmless 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 Compensation and Employers' Liability Insurance. 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 Liability Insurance ("CGLI"). 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 productslcompleted operations aggregate, $1,000,000 personal 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 field or radiation. d. Automobile Liabilitv Insurance. Business automobile policy covering all owned, hired and non-owned private passenger autos and commercial vehicles. Limits of liability not less 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 automobile liability insurance required above. Limits of liability not less than $5,000,000 each occurrence, $5,000,000 aggregate. 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, federal or other governmental compensation plans, or laws which would materially increase or decrease City's or Company's exposure to risk. f. Worker's Comuensation Waiver of Subrogation. City shall not be liable to Company, Company's contractors or their subcontractors, for any injuries to Company's employees or those of its contractors or their subcontractors arising out of or in connection with the grant of this Agreement, including any and all work of any type perfonned 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 primarily by the intentional acts of omissions or gross negligence of City, its agents or employees. For purpose of this Agreement, "gross negligence" shall mean any w.llful, wanton or reckless disregard of rights or safety. a a 0 Except as set forth above, Company and Company's contractors and their subcontractors shall each waive any and all rights of recovery from 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 with this Agreement extends to any such claims brought by or on behalf of any employee of Company, any contractor of Company or their subcontractors. g. Prooerty Insurance. Each party will be responsible for maintaining property insurance on its own building and other improvements, including all equipment, fixtures, utility structure, fencing, or support systems that may be built or placed upon the Property to fully protect against hazards of fire, vandalism and malicious mischief, and such other perils as are covered by policies of insurance commonly referred to and hown as "extended 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 against each other for any loss or damage to property caused by fire or other peril if the property is insured for such loss or damage in any policy of insurance even if such loss or damage is caused by the fault or negligence of the 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. 0 12. Damage or Destruction of ProDerty. If the Premises are destroyed or damaged, in no way due to the act or inaction of Company, to an extent that in the sole judgement of Company, 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 21 (a) and 21 (c). Company shall be obligated to re-pay any of the refund license fee for any time period during which Company is able to operate the Communications Facilities by using a temporary arrangement or if the Premises are restored. Regardless of any other provisions contained in this Agreement, City shall have no obligation to rebuild or restore any part of the Premises in the event of any such damage or destruction. 13. Indemnification. Company shall defend, indemnify and hold harmless City and all associated, affiliated, allied and subsidiary entities of City, whether existing now or in the future, and their respective officials, officers, departments, agencies, 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 primarily by the intentional acts OT 9 omissions or gross negligence (as defined in Paragraph ll(0 above) of City, its agents or employees; (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 all liability related to or associated with exposure to electromagnetic field or radio frequencies. 14. Environmental. Company represents and warrants that is use of Premises will not generate any hazardous substances, that it will not unlawfully store or dispose on the Property or unlawfully transport to or over the Property any hazardous substances and that its Communications Facilities do not constitute or unlawfully contain and will not generate any hazardous substance. No hazardous substance may be lawfully used stored on or transported over the Property except as are necessary for the operations of the Communications Facilities on the Property. "Hazardous substance" shall 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 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 by the Company of any such hazardous wastes or hazardous substances on, under or adjacent to the Property. 0 15. Taxes: No Liens. Company shall pay and be responsible for any and all personal and real estate taxes and assessments, general and special, levied and assessed against, or with respect to, or measured by, the Premises and the Communications Facilities. If any sales, use, income or other tax is ever assessed or levied against the license fee, charges payable by Company under this 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. Limitations. 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 or 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 caused by Company unless primarily caused by the intentional acts or gross negligence (as defined in Paragraph 1 I(f) above) 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 provision of Section 893.80 of the Wisconsin Statutes or other applicable limits on municipal liability. No indemnification provision contained in this Agreement shall be construed to in any way limit any other indemnification provision contained 10 a I 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 payment of the license fee or any other sums to City when due, and does not cure that default within fifteen (15) days of the City providing written notice of default upon Company; (b) Company defaults in the performance of any other term of this Agreement does 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. 18. Remedies 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 less than ten (IO) calendar days after the date of serving such notice, and this License shall expire on the date so specified as if that date had 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 current lease year, and all other prepaid amounts shall be returned to Company. Company shall not be released from any liability for the current five year term hereunder by reason of City’s engaging in any legal proceedings available to it upon liability for the payment of the license fee for the current five year term a herein provided. 0 19. No Nuisance. Company shall not howingly perform any acts or carry on any practices upon the Premises which may endanger or injure the Structure, Premises, Property, or surrounding areas or any person or be a nuisance or menace to adjoining property owners and shall keep the Premises free and clear of debris, rubbish, junk and garbage. 20. Assignability. Except as allowed herein, the Company shall not sub-license, or otherwise assign any of the benefits or obligations of this Agreement, without the prior w.tten consent of City, which shall not be unreasonably withheld or delayed. Company may sublicense or otherwise assign this Agreement to an affiliate (as defined below) without the consent of City. Company may also sub-license or otherwise assign this Agreement to a non-affiliated third party without the consent of City in a transaction involving the sale of all or substantially all of Company’s assets in the Milwaukee Area (“MTA”). 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 purpose to a person or entity that may be in competition with Company or any other party. “Affiliate” means any present or future, direct or indirect, parent entity, subsidiary or successor of Company or any other partnership, limited liability company, corporation, trust or other entity which is con(rolled by, controls or is under common control of the Company. Additionally, Company may, upon notice to Landlord, mortgage or grant a security interest in this Lease and the Antenna Facilities, and may assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests, including their successors or assigns (collectively “Mortgagees”), provided such Mortgagees agree to be bound by the terms and provisions of this Lease. 0 11 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 Premises and leave the Premises in the same or better condition as existed prior to the date of this Agreement, reasonable wear and tear excepted. 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’ witten 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 date of City’s notice of termination and Company’s vacation of the Property. License fees the Company paid for any time period on and after it receives City’s notice of termination shall be refunded to Company. After the City notifies Company of termination, 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: (i) any license, permit or other governmental approval of the location or authority is canceled, expires or is withdrawn or terminated and Company is no longer authorized to operate its Communication Facilities from the Premises; (ii) due to changes in technology or other events beyond company’s control, Company is no longer able to utilize the Premises for its Conununication Facilities; (iii) City requires relocation pursuant to paragraph 23 of this Agreement. 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 beyond 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 the pro-rated amount of any pre-paid license fees for any period of time beyond the 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. 0 22. Securitv for Removal. a. Prior to commencement of installation of Company’s Communications Facilities on the Premises, Company shall establish a Security Mechanism (as hereafter defined) to ensure that the Communications Facilities will be removed and the Premises restored to its previous condition, reasonable wear and tear excepted, at termination or expiration of this Agreement. For purpose hereof, “Security Mechanism” shall mean either (at Company’s election): (i) a security deposit posted with City; (ii) an irrevocable letter of credit; or (iii) an escrow deposit established with a title company - any such security deposit, letter of credit or escrow deposit to be in the amount of Ten Thousand Dollars (%lO,OOO.OO). b. In the event Company establishes a Security Mechanism by posting a security deposit with City, City shall not be responsible for paying interest on said deposit. In the event Company establishes a Security Mechanism by establishing an escrow, interest accming on said 12 0 deposit shall be payable to Company from time to time. c. City shall have the right to approve the title company and the form of escrow agreement with respect to any such escrow or the issuing bank and form of letter of credit with respect to any such letter of credit, if applicable. Any such escrow agreement or letter of credit shall, in part, include provisions that said agreement or letter of credit, as the case may be, cannot be terminated without the prior written consent of the City and a provision that the title company or issuer, as the case may be, pay all monies held in said account to the City upon receipt of a written statement by the City certifying that the Communications Facilities have not been removed and the Premises restored to its previous condition, reasonable wear and tear excepted, at the termination of this Agreement. d. Company may, from time to time, substitute for the then-existing Security Mechanism one of the other two types of Security Mechanism described herein and City shall cooperate in connection with each such substitution. e. Upon final satisfaction of Company’s removal obligations described in this Paragraph, all funds in the escrow or the letter of credit or the security deposit, as the case may be, shall be promptly returned to Company. 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 during the tern of this Agreement, including any renewal terms of this Agreement, at its option, require Company to relocate the Communications Facilities, to another location on the Property, or, to other property owned or controlled by City that is located in the general vicinity of the Premises and reasonably suitable for Company’s Communications 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 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 costs if relocation is required during 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 connection with any renegotiation 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, within 30 days after receipt of a detailed invoice, reimburse City for its pro-rata share of 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. Reeulatorv Filings. Upon City’s request, Company shall provide City with copies of all non-confidential petitions, applications, reports and communications submitted by Company to the FCC, Securities and Exchange Commission or any other federal or state regulatory 13 0 commission or agency having jurisdiction in respect to any matter affecting this License or Company's operation of its Communications Facilities. 26. Survival of Provision. All indemnification obligations of Company under this Agreement, including Paragraphs 10(b), 11, 13, and 14, shall survive the expiration of 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 confine the subordination of this Agreement to a particular mortgage, provided that such agreement contains reasonable consent and non-disturbance provisions to Company's continued right to use the Premises in accordance with this Agreement in the event that the mortgagee or trustee takes control of the Property. 28. Estoopel Certificate. Company shall, at any time and from time to time upon not less than ten (IO) days prior request by City, deliver to City a statement in writing certifying to the extent hue 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); (ii) the dates to which the license fee and other charges hereunder have been paid; (iii) 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. No Limitation on Authoritv. Nothing 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'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. 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 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. Applicable Law and Severability. This Agreement and any interpretation thereof shall be ruled by the internal laws (not the choice of law provisions) of the State 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. Miscellaneous. This Agreement constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations, and other agreements of any land. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Agreement must be in writing and executed by both parties. 14 0 Company and City represent that each has full right, power and authority to sign this Agreement. 33. Notices. All 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: City of Muskego Mayor's Office City Hall W182 58200 Racine Avenue Muskego, W153 150 If to Company: Voicestream PCS ll Corporation N19 W24075 Rivenvood Drive, Suite 100 Waukesha, W1 53 188 Attn. Legal Department Phone: 2624464300 Fax: 2624464370 With a copy to: Voicestream PCS II Corporation 12920 SE 38* Street Bellevue, WA 98006 Phone: (425) 6534600 Attn. Legal Department Fax: (425) 653-5050 15 IN WJR\JESS THEREOF, the parties have caused this Agreement to be executed on the date and year first written above. CITY CITY OF MUSKEG0 By: David De Angelis, Mayor By: Jill Blenski, Deputy City Clerk COMPANY: Voicesteam PCS II Corporation By: Name: Title: 16