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CCR2001044COMMON COUNCIL - CITY OF MUSKEG0 RESOLUTION #44-2001 APPROVAL OF LICENSE AGREEMENT BETWEEN THE CITY OF MUSKEG0 AND VOICESTREAM PCS I1 CORPORATION AND PERFORMANCE ASSURANCE ASSIGNMENT OF SAVINGS 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 Voicestream PCS I1 Corporation and the attached Performance Assurance Assignment of Savings. BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are authorized to sign the Agreement and the Assignment of Savings in the name of the City. All fees associated with the Agreement must be paid prior to the City’s execution of same. DATED THIS 27th DAY OF Februaw ,2001 SPONSORED BY: FINANCE COMMITTEE Ald. Mark Slocomb Aid. David Sanders Aid. Nancy Salentine This is to certify that this is a true and accurate copy of Resolution #44-2001 which was adopted by the Common Council of the City of Muskego. 2/0ljmb LICENSE AGREEMENT BETWEEN CITY OF MUSKEGO AND VOICESTREAM PCS II CORPORATION WATER TOWER SITE License Agreement dated , 200 1, by and between City of Muskego (“CityNillagelTown”) and Voicestream PCS II Corporation, with 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 describ’ed 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 BOUND, 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 plans, all of the following regarding installation of the Communications Facilities: (1) If 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 Utilities 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. e 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 otherwise 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 four (4) successive five (5) year renewal teins. 4. License Fees Per Site. a. There shall be a one time License Agreement inception fee of $7,000 due with initial License payment. b. During the first year of this Agreement, Company shall pay City an annual license fee of $15,600. During the initial term and any renewal term, the annual license fee shall be increased by 5% over the license fee in effect the immediately preceding year. Such increase shall be made and adjusted on each annual anniversary date of the Agreement. C. 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. d. 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 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 Shucture. e. 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 2 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 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 filly 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 Remises, 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. 0 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 struchual 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. 3 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 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, ana 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 conkactor will bid on the cost of painting the Structure without the Communications Facilities. The 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. Company shall reimburse City for the difference between the two bids. I. 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 4 r City Engineer has approved the same in writing. 7. Modifications. Company shall not make any material additions, 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 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 0 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. 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 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) 6794128 (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 hvo (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. IO. 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 6 -. .. 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 reasonably cooperate with Company to carry out such activities with a ninimum 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 601) 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. h 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 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. e 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. 1 1. 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 VU 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 7 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 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 properly 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, $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 Liability 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 Liability 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. to Company, employees or f. Worker's Compensation Waiver of Subrogation. City shall not be liable .~ those of its contractors or their subcontractors arising out of or in connection with Company's contractors or their subcontractors, for any injuries to Company's the grant of this Agreement, including any and all work of any type perfomed 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 8 0 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 willful, wanton or reckless disregard of rights or safety. 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. Prouem Insurance. Each party will be responsible for maintaining property insurance on ,Us 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 known 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 Prouem. If the Remises 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 mgement or if the Remises 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 subsidialy 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 9 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 or omissions or gross negligence (as defined in Paragraph 1 I(f) 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 hm 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 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 tiling 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 I l(f) above) of City, its agents or employees. No provision of this Agreement is intended, or shall be construed, to be a waiver 10 a 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 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; @) 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 iqsolvent. 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 0 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. 19. No Nuisance. Company shall not knowingly 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. Assimabilitv. 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 written 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 conwoolled 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 I1 their successors or assigns (collectively “Mortgagees”), provided such Mortgagees agree to be bound by the terms and provisions of this Lease. 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’ 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 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 Communication 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. 22. Security 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). 12 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 accruing on said 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. 0 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 term 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 re-negotiation 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. 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. 0 13 25. Regulatorv 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 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 lo@), 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 nondisturbance 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. Estoppel Certificate. Company shall, at any time and from time to time upon not less than ten (10) days prior request by City, deliver to City a statement in writing certifying to the extent true 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. 29. No Limitation on Authority. 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. 3 1. 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 14 understanding of the parties, and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Agreement must be in writing and executed by both parties. 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: If to Company: 0 With a copy to: City of Muskego Mayor's Office City Hall W 182 58200 Racine Avenue Muskego, WI 53 1 SO Voicestream PCS Il Corporation N19 W24075 Riverwood Drive, Suite 100 Waukesha, WI 53188 Am. Legal Department Phone: 262464300 Fax: 262464370 Voicestream PCS U Corporation 12920 SE 38' Street Bellevue, WA 98006 Attn. Legal Department Phone: (425) 6534600 Fax: (425) 653-5050 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 De Angelis, Mayor By: Jill Blenski, Deputy City Clerk COMPANY: By: 16 EXHIBIT A LEGALOESCRIPTION: R parcel of land located in the Uortheaat 114 oC Section 11. Tom 5 North. Range 20 Eaet, City of Muekego. County of Waukeaha, State Of wisconein. described a* €ollovs. Beginning ac the East If4 comer o€ said Section; thence Worth 00. 28' Wisconsin Electric Power Company right-of-way; thence South 55' 20' 15. 15. Eaat an che Section line 1841.12 feet to the Soucherly line of' the Weec On the Soucherly line of said right-of-way 1646.90 €=et; thence along a cwe on che Southerly line of said right-of-way (radius 5167.15 feet. central angle 13- 53' 20.. chord 1394.54 feet, chord bearing South 62. 16' 55. West) 1398.00 €ea; chcncc South 22- 59' 05. Edat 302.12 feet to Che one-qrurter.line: thence North 89. 31' 55. East on the If4 line 2456.01 feet to Chs place of begidng; and a Wisconsin Electric Power Company EascmOnt vairying in width from 52 feet ac che Wcscem side of the property EO 40 feet at che Eaatern side of the property recorded in Volume 182. Page 414 of Dee&. W&esha County Records BXCEETIUG land conveyed in the bllowing dD-nts: warranty Deed Do-nc Uo. 944899. and Certified s-oy Mpa rich DoCumenC NOS 1024145, 1024743. 1215371, 1024744. 1046810. 1039680. US0 EXCCEPTING land conveyed Cor the Plat oC Muskego Industrial Park 1931312 and 1209864 Document No. 761183. Tax Key No. USKC 2225.999.001 ADORBSS: W1090 58235 Mer- Drive EXHIBIT B IA ..I I. ..- .._". ... .. ...... I .... .I U.... " " ...."..". .."I.. .. .... . . .- -...... EXHIBIT C 1 EXHIBIT ‘&D” AS BUILT DRAWING TO FOLLOW 30 DAYS AFTER COMPLETION OF CONSTRUCTION 0 EXHIBIT E : I MEMORANDUM OF LICENSE Markcl: Milwaukee Sile Number: ML14031B Sire Namc: Murkego WT This Memorandum of License (“Memorandum”) gives notice of that certain Water Tower Site License (“License”) by and between City of Muskego (“CitylTownNillage”), whose mailing address is Mayor’s Office, City Hall, W182 58200 Racine Avenue, Muskego, WI 53150 and Voicestream PCS II Corporation, a Delaware corporation (“Company”), whose mailing address is Attn: Lease Coordinator, N19 W24075 Riverwood Drive, Waukevha, WI 53188. Date of License: ,2001 Demised Premises: See attached Exhibit A Initial Term: 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 commencement of this Agreement or the date of issuance of a building permit (the “Commencement Date”), and ending on the fifth anniversary thereof. THIS SPACE RESERVED FOR RECORDED DATA This instruction uar drafted by and should be returned to: VaiceSbeam PCS I1 Corporation NI9N24075fivmoodDnve Waukerha. WI 53188 Aim: kasc Administration Parcel I.D. No. MSKC 2225.999.001 Renewal Terms: Four (4) additional five-year periods after the expiration of the initial term of the License. The purpose of this Memorandum is to give record notice of the License and of the rights created thereby, all of which are hereby confirmed and incorporated herein. NOW, THEREFORE, CitylTownNillage, in consideration of the rents and covenants provided for in the License to be paid and performed by Company, does hereby grant and let unto Company the Demised Premises upon the terms and subject to the conditions set forth in the License, a copy of which is being held by CitylTownNillage at its address stated above. Page 1 of 4 0 EXECUTED as of the date, or later of the dates, set forth in the respective acknowledgments of the parties hereto. Owner: City of Muskego By: Its: Attest: City of Muskego By: Its: 0 COMPANY. Voicestream PCS II Corporation, a Delaware corporation By: Its: [Acknowledgment Page Follows] Page 2 of 4 ACKNOWLEDGMENTS Municipal Owner: STATE OF WISCONSIN ) COUNTY OF Waukesha ) )SS: Personally came before me this- day of , 2001, the above- named , to me known to be the Mayor of the City of Muskego, Wisconsin and to me known to be the Mayor of said municipality who executed the foregoing instrument and acknowledged the same as the free act and deed of said municipality. Notary Public, State of Wisconsin MY Commission Municipal Owner: STATE OF WISCONSIN 1 COUNTY OF Waukesha 1 )SS: Personally came before me this- day of - 2001, the above- named , to me known to be the City of Muskego Clerk of the City of Muskego, Wisconsin and to me known to be the Clerk officer of said municipality who attested to the foregoing instrument and acknowledged the same as the free act and deed of said municipality. Notary Public, State of Wisconsin My Commission Company: STATE OF ILLINOIS 1 COUNTY OF COOK 1 )SS: Personally came before me this __ day of , 2001, the above- named , to me known to be the , of Voicestream PCS II Corporation, a Delaware corporation, and to me known to be the officer of said corporation who executed the foregoing instrument and acknowledged the same as the free act and deed of said corporation. Notary Public, State of Illinois My commission: Page 3 of 4 EXHIBIT A TO MEMORANDUM OF LICENSE Legal Description The Property is legally described as follows: - PERFORMANCE ASSURANCE ASSIGNMENT OF SAVINGS . 0 - FOR VALUE RECEIVED, VoiceStream PCS Il Cornoration assigns, transfers, and sets @positor Name) over to the City of Muskego, Waukesha County, Wisconsin (herein “City of Muskego”), all right, title, and interest in and totenthousand100 ($10,000) dollars in Savings Account # 153591697807 in U.S. Bank Name) fcrhoject located at W189 S8235 Mercury Drive, Muskego, WI 53150 (Asriped Amount) (ROpCrrY Addm) Ptrmit # F’rojectName MW14-031B MuskeEo Water Tower For the purpose of ensuring tbat VoiceStream will remove the Communications Facilities and restore the Premises to its previous condition, reasonable wear and tear excepted, at termination or expiration of the License Agreement, the City of Muskego shall have sole power and authority to demand, call, and receive said deposit upon presentation of a signed statement that Voih has failed to perform in accordance with the provisions of the License Agreement If after termination of the License Agreement the requirements of the Agreement have been completed in a satisfactory manner, and a written retease of this assignment fiom the City of Muskego is received, this Assignment shall terminate and the City of Muskego shall have no further rights or interest in said account rnCrrYL==e) SIGNED AND DATED at Muskego , Wisconsin, this - day of ,2001 (CiW Address 12920 SE 38* Street, Bellevue, WA 98006 Phone 425-378-4000 APPROVED AND ACCEPTED: The undersigned financial institution accepts the foregoing assignment and hereby agrees to hold said account pursuant to the terms thereof until a written release of this assignment from the City of Muskego is received or until the City of Muskego exercises its sole power and authority to demand or call the deposit This Performance Assurance Assignment of Savings shall be construed as a Letter of Credit under the laws of the State of Wisconsin. This Assignment of Savings is irrevocable. Account No. 153591697807 Baak US. BankNational Association Phone 206-344-4456 Address 1420 Fifth Avenue. 10’ Floor. Seattle. WA 98101 Authorized Signer Thomas G. Gunder Title Vice President Signature Date (Pin1 Name) APPROVED AND ACCEPTED by the City of Muskego: BY Date