AGENDA City of Milton Common Council Tuesday, September 16, 2014 7:00 p.m. MILTON CITY HALL Council Chambers, 710 S. Janesville Street
1. Call to order and confirmation of appropriate meeting notice
2. Welcome citizens and address their questions and concerns not on the agenda
3. Swearing in of City of Milton Police Officer Joseph Fox
4. Approval of the Consent Agenda a. Common Council Minutes – September 2, 2014 b. Historic Preservation Commission Minutes – August 6, 2014 c. Parks & Recreation Commission Minutes – August 18, 2014 d. Personnel & Finance Committee Minutes – August 19, 2014 1. Operator License 2. Acceptance of bid for Agnew Drive 3. Approval of Public Works Surplus sale 4. Chief of Police Residency Requirement 5. Treasurer Report e. Plan Commission Minutes – July 8, 2014 1. Conditional Use Permit – Milton Area Youth Center / McGuire, 303 Vernal Avenue f. Public Safety Committee Minutes – August 19, 2014 g. Zoning Board of Appeals Minutes – May 1, 2014
5. Public Hearing for Agnew Drive Special Assessments
6. Old Business a. Discussion and possible action regarding Resolution #2014-19 – Special Assessment on Agnew Drive. b. Discussion and possible action regarding City of Milton / Unison Site Management / Cell Tower Agreement
7. New Business a. Discussion and possible action regarding Proclamation Freedom in the Workplace form Bullies.
Common Council Mission Statement: With integrity and involved citizens, the City of Milton Common Council will strive to preserve a high quality of life, meet the public’s needs with cost effective services, and foster a community in which people are proud to live. b. Discussion and possible action regarding Ordinance #397 – Amending Section 78 to allow Professional and Non-Retail Business Offices.
8. General Items a. Next meeting – October 7, 2014 b. Mayor/Alderperson Reports c. Staff Reports 1. City Administrator 2. Director of Public Works 3. Chief of the Police Department 4. Finance Director / City Treasurer 5. Director of Library 6. Chief of the Jt. Fire Department 7. City Clerk
9. Motion to Adjourn
**Please note that upon reasonable notice, at least 48 hours in advance, efforts will be made to accommodate the needs to disabled individuals through appropriate aids and services. For additional information to request this service, please contact the City Clerk’s office at 868-6900, 710 S. Janesville Street, Milton, WI 53563.
Posted at: Dave’s Ace Hardware, Piggly Wiggly, Milton City Hall
Common Council Mission Statement: With integrity and involved citizens, the City of Milton Common Council will strive to preserve a high quality of life, meet the public’s needs with cost effective services, and foster a community in which people are proud to live. City of Milton Common Council ~ Tuesday, September 2, 2014
Call to order and confirmation of appropriate meeting notice Mayor Frazier called the meeting to order at 7:04 pm. Clerk Ebbert confirmed the appropriate meeting notices were posted.
Present: Mayor Brett Frazier, Ald. Lynda Clark, Ald. Theresa Rusch, Ald. Don Vruwink, Ald. Dave Adams, Ald. Anissa Welch and Ald. Nancy Lader.
Also Present: City Clerk Michelle Ebbert, City Attorney Mark Schroeder, Chief of Police Dan Layber, Director of Public Works Howard Robinson and Chief of the Fire Department Loren Lippincott.
Welcome citizens and address their questions and concerns not on the agenda Mayor Frazier welcomed those in attendance and asked if there were any concerns not on the agenda.
Lance Fena, 2022 E. Manogue Road, resident of the Town of Milton. Mr. Fena requested information that is listed under Old Business be listed under New Business as he feels the information noted in the memorandum is new information as it pertains to an interchange.
Presentation by Dr. Tom Den Boer YMCA of Northern Rock County. Dr. Tom Den Boer was present to provide a presentation to the Council.
Approval of the Consent Agenda Ald. Clark moved to approve the consent agenda. Ald. Vruwink seconded the motion and carried.
Old Business Informational update regarding request from the Wisconsin Department of Transportation for the City of Milton to consider sponsorship of the proposed I-39/90 and County M Interchange. Mayor Frazier discussed the request received from the WI DOT requesting the City of Milton to be a sponsorship of the proposed interchange. He discussed the idea of forming a committee to review the impact of an interchange.
Ald. Welch asked if the Committee would serve by appointment or by interested parties requesting to serve. Mayor confirmed by appointment.
Ald. Clark questioned the involvement of this project in association with Bill Watson. Mayor Frazier stated no new information has been presented that had anything to do with Bill Watson.
Mayor Frazier ask if the Council wants to look any further into a potential interchange. He stated the development has no requests attached and this is not in our jurisdiction. He noted there is no sense of imminent development.
Ald. Adams mentioned this may not be the best use of staff time and tax dollars for such a committee.
Ald. Clark asked the Council if they are open for economic development.
Ald. Adams added that the interchange would be in the Town of Fulton and Town of Milton. Those municipalities should be first to step forward.
Ald. Vruwink questioned why the DOT contacted the City again. Is there information not being presented at this time?
Mayor Frazier does not believe any interchange would be in the city. This would bring exclusive interstate access to Milton.
Ald. Clark would like to continue to pursue an interchange. She feels the City may have to take a lead in the research.
Mayor Frazier mentioned potential study topics if a committee would to be made: impact on traffic, schools, public safety, roads,
Ald. Lader believe this discussion is out of sequence as this is not City land and no annexation paperwork was submitted.
Ald. Clark added that the City approached the DOT many years back and asked if Milton could have an interchange.
Jodi Trepasso, 8341 N. Kidder Road, Town of Fulton: has done research and has been asked by the Mayor to serve on a committee. She has questions and comments prepared if a committee would be requested.
Ald. Lader moved to table discussion of forming a committee to review a proposed interchange until the City receives documentation of annexation request. Ald. Rusch seconded the motion and carried unanimously
New Business Discussion and possible action regarding Resolution #2014-17 – Preliminary Public Works Resolution scheduling a Public Hearing date of September 16, 2014 for potential curb and gutter assessments on Agnew Drive. Clerk Ebbert reviewed the Resolution required for the Common Council to schedule a date for a public hearing to be held for special assessments on the Agnew Drive construction project. The public hearing is scheduled for September 16, 2014.
Ald. Clark moved to adopt Resolution #2014-17 Preliminary Public Works Resolution scheduling a public hearing for September 16, 2014. Ald. Vruwink seconded the motion and carried.
Discussion and possible action regarding Resolution #2014-18 – Jurisdictional Transfer Agreement, WIS 59, City of Milton. Clerk Ebbert stated this Resolution pertains for former Hwy 59 also known as E. High Street from the Janesville Street intersection east to the edge of the City limits.
Ald. Welch moved to adopt Resolution #2014-18 Jurisdictional Transfer Agreement, WIS 59, City of Milton. Ald. Lader seconded the motion and carried.
Discussion and possible action regarding Ordinance #400 – Amend Prohibited Parking on Plumb Street. Chief Layber discussed the Ordinance that prohibits parking on Plumb Street adjacent to Blackhawk Technical College. This would eliminate parking on the west side of Plumb Street from Madison Avenue to the railroad tracks.
Ald. Vruwink moved to approve the first reading, waive the second and third readings and adopt Ordinance #400 prohibiting parking on Plumb Street. Ald. Adams seconded the motion and carried.
Discussion and possible action regarding Ordinance #401 – Create Prohibited Fraud on Gas Station. Chief Layber reviewed Ordinance #401 that would aid enforcement of gasoline drive-offs by motorists. Without the adoption of the Ordinance, officers have limited resources to charge a person with theft unless they were to admit the crime was intentional.
Ald. Adams moved to approve the first reading, waive the second and third readings and adopt Ordinance #401 creating prohibited fraud on gas station. Ald. Lader seconded the motion and carried.
Discussion and possible action regarding City Clerk resignation. Mayor Frazier received a letter of resignation from Michelle Ebbert effective September 12, 2014.
Ald. Vruwink moved to approve the resignation of Michelle Ebbert. Ald. Rusch seconded the motion and carried.
Mayor Frazier discussed the recruitment plan for the City Clerk position advertising for a City Clerk/Deputy Treasurer position at a pay range of $50,000 - $60,000.
General Items Next meeting – Tuesday September 16, 2014
Mayor/Alderperson Reports Ald. Vruwink thanked those that contributed to the Crossridge Park build day. The playground is now open.
Ald. Clark made a final request for review of a potential Evermor development. Would like a formal meeting of the Council stating they are not interested and would not pursue further actions.
Mayor Frazier thanked those that were involved with the Crossridge Park build day.
Mayor Frazier discussed the Downtown Development Advisory Committee’s review of a program available through the Connect Communities.
Staff Reports City Administrator No report available. Director of Public Works Crossridge park is open with some final seeding scheduled. September is brush collection month. DOT starting work on HWY 26. Chief of the Police Department Last week there were some thefts from vehicles. A resident reported a stranger in their garage upon arriving home. Director of Library No report available. Chief of the Jt. Fire Department Review the burning ordinance and be careful. City Clerk Thanked the Community for the support over the last decade. Finance Director / City Treasurer No report available.
Consideration of a motion to convene into closed session pursuant to Wisconsin Statute Section 19.85(1)(c) Considering employment, promotion, compensation, or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility. Re: City Administrator contract. Ald. Vruwink moved to convene into closed session at approximately 8:20 pm. Ald. Lader seconded the motion and carried by a unanimous voice vote of the Council.
Reconvene into open session for possible action(s) on City Administrator contract. Ald. Welch moved to reconvene into open session at approximately 9:54 pm. Ald. Rusch seconded the motion and carried by a unanimous voice vote of the Common Council
Ald. Clark moved to approve the hiring and contract of Alan Hulick as the City Administrator as presented. Ald. Rusch seconded the motion. Motion carries with Ald. Adams and Ald. Lader opposing. Motion carries 4-2.
Motion to Adjourn Ald. Welch moved to adjourn the meeting at 9:56 pm. Ald. Lader seconded the motion and carried.
Respectfully submitted
Michelle Ebbert City Clerk
PUBLIC WORKS RESOLUTION #2014-19
Final Resolution Authorizing Special Assessment Against Benefitted Properties for the Replacement of Curb and Gutter on Agnew Drive
WHEREAS, the Common Council of the City of Milton, Wisconsin held a public hearing in the Council Chambers at 7:00 p.m. on September 16, 2014; for the resolution and report of the Director of Public Works on the following described project;
REPLACEMENT OF CURB AND GUTTER ON AGNEW DRIVE Total Estimated Feet of Assessable Property Address Estimated Curb/Gutter Cost Per Foot Assessment 1025 Agnew Drive 0 $9.75 $00 1035 Agnew Drive 20 $9.75 $195.00
NOW THEREFORE BE IT RESOLVED, by the Common Council of the City of Milton as follows:
That the report of the Director of Public Works pertaining to the above-described project is hereby adopted and approved. That payment of said improvement be made by assessing the cost to the abutting property owner. Those benefits shown on the report are true and correct, have been determined on a reasonable basis and are hereby confirmed.
The assessments as proposed in the report of the Director of Public Works has set forth above are adopted and approved as an exercise of the police power of the City.
Assessments will be deferred until following year without interest. The full amount of assessment not paid by September 1, 2015 will be certified on the tax roll with administration fee of $25.00.
The City Clerk is directed to mail a copy of this Resolution and a statement of the final assessment against the property to every property owner whose name appears on the assessment role whose post office address is known or can with reasonable diligence be ascertained. The City Clerk is further directed to publish this Resolution as a Class 1 notice in the Milton Courier.
Approved this 16th day of September, 2014 ______Brett J. Frazier, Mayor Attest:
______City Clerk
NET PROFITS AGREEMENT
THIS NET PROFITS AGREEMENT (“Agreement”) is made as of the ____ day of ______, 2014 (“Effective Date”) by and between The City of Milton, Wisconsin, a municipal corporation, whose address is 430 E. High Street, Milton, Wisconsin 53563 (“Site Owner”) and T14 Unison Site Management LLC, a Delaware limited liability company whose address is P.O. Box 1951 Frederick, Maryland 21702-0951 (“Unison”). All references hereafter to “Unison” and “Site Owner” shall include their respective heirs, successors, personal representatives, lessees, licensees and assigns (Unison and Site Owner, collectively, “Parties”).
RECITALS
WHEREAS, Site Owner is the owner of that certain water tower and property (collectively, the “Property”) located in the City of Milton, County of ______, in the State of Wisconsin, having a street address of 5 Cedar lake Avenue, Milton, Wisconsin.
WHEREAS, the Property is subject to certain existing leases and license agreements (collectively, “Existing Agreements”) and may be subject to other agreements (as may be hereafter defined) that require the lessees or licensees thereunder to pay rents, license payments, escalations and any other amounts (such amounts, collectively the “Rent”);
WHEREAS, as of ______, 201_ the Parties entered into a Wireless Communication Easement and Assignment Agreement (the “Easement Agreement”), pursuant to which Site Owner granted to Unison certain easements in the Property (the “Easement”), and assigned to Unison the Existing Agreements;
WHEREAS, the Easement Agreement grants Unison the right to lease, license, transfer or assign, in whole or in part, or permit the use of the Easement to third parties and/or customers of Unison (collectively, “Customers”) and grants Unison the right to any and all Rent through the stated term of the Easement Agreement;
WHEREAS, the Parties agree that “New Customers” means Customers other than tenants under the Existing Agreements, their successors, assigns or other parties claiming rights there through;
WHEREAS, the Parties agree that “Scheduled Rent” means the Rent due, at any point in time, in accordance with the provisions of the Existing Agreements as of the Effective Date. Scheduled Rent shall begin on the Effective Date and continue through the stated term of the Easement Agreement. For purposes of determining Scheduled Rent, the Existing Agreements are deemed to remain in full force and effect throughout the stated term of the Easement Agreement;
WHEREAS, the Parties agree that “Unison Rent” means the cumulative amount of Scheduled Rent due to Unison from the Effective Date through the date on which the amount is calculated (“Date of Determination”);
WHEREAS, the Parties recognize that the Existing Agreements are scheduled to terminate on or about June 30, 2026 (the “Termination Date”) and in the future Unison may enter into a successor lease, license or other agreement with tenants under the Existing Agreements pursuant to which Unison may lease or license that portion of the Easement which lies within the boundaries of the premises demised in the Existing Agreements, and which may result in Unison actually receiving Rent, after the Termination Date, that is greater than Unison Rent ("Excess Revenue");
WHEREAS, the Parties recognize that in the future, Unison may enter into leases, licenses or other agreements with New Customers which will demise portions of the Easement which are located beyond the boundaries of the premises demised in the Existing Agreements (such agreements, collectively "Adjoining Area Agreements") which may result in Unison actually receiving Rent that is greater than Unison Rent (“Adjoining Area Excess Revenue”);
WHEREAS, Unison has agreed to pay to Site Owner ____ percent (__%) of Excess Revenue and/or Adjoining Area Excess Revenue, if any, as set forth below;
Unison Form NPA Site # 476122 C3 1 NPA_0407
NORLEANS: 90924.85017: 107619v11
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 ($10.00) Dollars and other good and valuable consideration, the receipt and sufficiency of which Site Owner does hereby acknowledge and grant Unison full discharge and acquittance therefor, Site Owner and Unison agree to the following:
1. Stipulation and Acknowledgement. The Parties stipulate, acknowledge, and agree that this Agreement (i) does not constitute an “executory contract” under Section 365 of the United States Bankruptcy Code, 11 U.S.C. § 365; and (ii) is non-executory in nature, and therefore is not subject to rejection under Section 365 of the United States Bankruptcy Code, 11 U.S.C. § 365. The Parties stipulate, acknowledge, and agree that this Agreement does not impose any continuing obligations on the Site Owner whatsoever.
2. Acknowledgement Concerning Effect of Easements. The Parties acknowledge and agree that, pursuant to the Easement Agreement and the easements created and real property rights granted to Unison under the Easement Agreement, only Unison is entitled to collect and receive Rent.
3. Excess Revenue and/or Adjoining Area Excess Revenue. Notwithstanding the acknowledgement contained in Section 2 above, Unison shall pay to Site Owner, on a monthly basis, fifty percent (50%) of all Excess Revenue and/or Adjoining Area Excess Revenue, if any, from the Rent actually received by Unison (the "Net Profits Payment"). Unison shall remit the Net Profits Payment to Site Owner on the fifteenth (15th) day or first business day thereafter of each month throughout the term hereof, based on the amount of Excess Revenue and/or Adjoining Area Excess Revenue, if any, actually received by Unison during the preceding month, less: (i) any costs and expenses actually incurred by Unison due to the failure of Site Owner to comply with its obligations under the Easement Agreement and any amounts due to Unison (including, without limitation, any reimbursement or offset) under the Easement Agreement; and (ii) fifty percent (50%) of collection costs, attorneys’ fees and court costs actually incurred by Unison in enforcing or otherwise litigating the terms of any Customer agreement. The obligation of Unison to pay Excess Revenue, if any, to Site Owner pursuant to this Agreement commences on the Termination Date. Unison and Site Owner acknowledge that such termination date is only an estimate of the date that the Existing Agreements are scheduled to terminate and that Unison shall not be obligated to pay Excess Revenue until the date that the Existing Agreements actually terminate in accordance with the terms set forth in said Existing Agreements.
4. Unison Rent. Throughout the term of this Agreement, Unison is entitled to receive the amount of Unison Rent as determined in accordance with the provisions of this Agreement. The Parties intend that if at any time during the term hereof the Rent actually received by Unison is less than Scheduled Rent, then Unison shall retain all Rent, until such time as Unison has received the full amount of Unison Rent which would then be due to Unison as of the Date of Determination. The obligation of Unison to pay any amounts to Site Owner pursuant to this Agreement is expressly subject to the condition that at any point in time throughout the term of this Agreement, Unison shall have received the full amount of Unison Rent due to Unison as of the Date of Determination.
5. Termination. This Agreement shall terminate, and the payment and other obligations of Unison hereunder shall immediately cease and be of no effect upon termination of Unison's interest in the Property for any reason.
6. Default. (a) In the event of a monetary default ("Default") hereunder by Unison, Site Owner shall provide Unison with written notice of the Default, and Unison shall have fifteen (15) days from its actual receipt of such notice to cure same. If Unison fails to cure the Default within the foregoing grace period, then Site Owner’s only remedies for a breach of this Agreement shall be specific performance or recovery of the amount of Site Owner’s actual damages for such breach of this Agreement; provided however, that Unison shall not be liable or responsible to Site Owner for lost profits or any other damages which are indirect, consequential, exemplary or punitive. Further, Site Owner is not entitled to terminate the Easement Agreement or terminate the easements created under such agreement for any reason whatsoever (including any breach of this Agreement or the Easement Agreement).
In the event of any dispute (including any dispute over an alleged Default) or non-monetary default arising out of this Agreement, the following dispute resolution process shall be followed: (1) upon a party's written notice of dispute to the other party, an authorized representative of the Site Owner and Unison shall, through a good faith negotiation, attempt to settle a written resolution with thirty (30) days and (2) if such negotiation attempts fail, either party may commence an action in the Circuit Court for Rock County Wisconsin. The prevailing party in any
Unison Form NPA Site # 476122 C3 2 NPA_0407
legal proceeding under this section 16b shall be entitled to record all costs incurred in connection with such legal proceeding including disbursement and reasonable legal fees (b) Formatted: Indent: Left: 0.5", No bullets or numbering
7. Severability. The Parties agree that if any term of this Agreement is found to be void or invalid, such provision shall be fully severable herefrom and such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect, and this Agreement shall be reformed and construed as if such invalid provision had never been contained herein, and if possible, such provisions shall be reformed to the maximum extent permitted under applicable law to render same valid, operative and enforceable to reflect the intent of the Parties as expressed herein.
8. Absence of Certain Representations or Warranties. Site Owner acknowledges that Unison has not made any representations or warranties to Site Owner concerning the amount of revenue, if any, to which Site Owner may be entitled to receive pursuant to the Agreement, and Unison hereby disclaims all such representations and warranties.
9. Receipt of Certain Funds by Site Owner. In the event Site Owner receives any revenues or checks due Unison pursuant to the Existing Agreements or otherwise with respect to the Easement, Site Owner shall promptly deliver such funds and/or endorse such checks to Unison for distribution pursuant to the terms hereof.
10. Assignment; Secured Parties. Unison has the unrestricted right to assign, mortgage or grant a security interest in all of Unison’s interest in and to this Agreement, and may assign this Agreement to any such assignees, mortgagees or holders of security interests, including their successors and assigns (“Secured Party” or, collectively, “Secured Parties”). Site Owner agrees to notify Unison and Secured Parties (provided Unison has given Site Owner notice and contact information of Secured Parties) simultaneously of any default by Unison and give Secured Parties the same right to cure any default. If any Secured Party shall succeed to Unison’s interest under this Agreement, such Secured Party shall have no liability for any defaults of Unison accruing prior to the date that such Secured Party succeeds to such interest with Unison continuing to be liable for any defaults after such assignment. Site Owner will enter into modifications of this Agreement reasonably requested by any Secured Party. Site Owner shall have the right to assign or grant a security interest in this Agreement, provided that Unison shall not be bound by any such assignment or security interest unless Unison receives notice of such assignment or security interest, together with the correct notice address of such assignee or grantee. All payments made by Unison to Site Owner prior to receipt of the foregoing notice shall be deemed to satisfy the payment obligations of Unison hereunder.
11. Estoppel Certificate. At any time during the term hereof, each party shall have the right to deliver to the other a statement of such party certifying: (i) that this Agreement is unmodified and in full force and effect (or, if there have been modifications, stating the modifications and that the modified Agreement is in full force and effect); (ii) whether or not, to the best knowledge of the responding party, the requesting party is in default in performance of any of its obligations under this Agreement, and, if so, specifying each such default; (iii) that there are no amounts due to the responding party from the requesting party; and (iv) any other information reasonably requested concerning this Agreement (the “Estoppel Certificate”). In the event the responding party fails to dispute the Estoppel Certificate by delivery to the requesting party of a notice specifying the nature and circumstances of any matter in the Estoppel Certificate that is disputed by the responding party within ten (10) days of receipt of the Estoppel Certificate, then all matters specified in the Estoppel Certificate shall be deemed true and correct, and the Estoppel Certificate shall thereafter be binding on the Parties, Secured Party or any party designated by the requesting party, and all of such parties may thereafter rely on the Estoppel Certificate as a conclusive statement of fact by the responding party as to the matters set forth therein.
12. Audit. Site Owner shall have the right to conduct an audit of Unison's books and records pertaining to the rental income from the Easement and any amounts to be paid to Site Owner hereunder, upon at least thirty (30) days prior written notice to Unison delivered on or before December 31 of the calendar year following the calendar year for which the audit is to be conducted. In the event that Site Owner fails to deliver a request for an audit to Unison on or before December 31 of any year, all accountings, statements and payments delivered by Unison to Site Owner for the immediately preceding year shall be deemed accurate and binding on the Parties, and Site Owner shall thereafter have no right whatsoever to dispute same. Site Owner shall bear all reasonable costs of the audit, including, without limitation, reasonable copying costs.
Unison Form NPA Site # 476122 C3 3 NPA_0407
13. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given one (1) business day after posting with a nationally recognized overnight courier service, or the earlier of receipt or ten (10) days after posting by registered or certified mail, return receipt requested, to the addresses of Site Owner and Unison set forth on the signature page. Either party may change its notice address by providing a new recipient name and address by notice as set forth in this paragraph.
14. No Joint Venture or Partnership. Neither party shall be, or hold itself out to be, the agent of the other party and neither party shall have the authority to bind or commit the other party. Neither party shall be empowered to accept legal process on behalf of the other party. Nothing contained in this Agreement shall be deemed to create a partnership or joint venture between the Parties.
15. Miscellaneous. (a) The Parties agree that the recitals and prefatory phrases and paragraphs set forth above are hereby incorporated in full, and made a part of, this Agreement; (b) this Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supersedes all offers, negotiations and any other written or verbal agreements; (c) any amendments to this Agreement must be in writing and executed by both Parties; (d) this Agreement is governed by the laws of the State in which the Property is located; (e) the section headings of this Agreement have been inserted for convenience of reference only, and shall in no way modify or restrict the terms of this Agreement; (f) Site Owner acknowledges that Unison has not provided any legal or tax advice to Site Owner in connection with the execution of this instrument; and (g) this Agreement may be executed in any number of counterparts, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument.
[SIGNATURE PAGES FOLLOW]
Unison Form NPA Site # 476122 C3 4 NPA_0407
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
WITNESSES: "SITE OWNER":
THE CITY OF MILTON, WISCONSIN, A ______MUNICIPAL CORPORATION. Print Name: ______
______By: ______Print Name: ______Print Name: ______Title: ______
Address: 430 E. High Street City: Milton State: Wisconsin 53563 Zip: Tel: ______Fax: ______
Unison Form NPA Site # 476122 C3 5 NPA_0407
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
“UNISON”:
WITNESSES: T14 UNISON SITE MANAGEMENT LLC, a Delaware limited liability company
By: Print Name: Name: ______Title: Authorized Signatory
Print Name: Address: P.O. Box 1951 City: Frederick State: Maryland Zip: 21702-0951 Tel: (646) 452-5455 Fax: (301) 360-0635
Unison Form NPA Site # 476122 C3 6 NPA_0407
Prepared by: Robert W. Mouton Locke Lord LLP 601 Poydras Street, Suite 2660 New Orleans, LA 70130 LL File: #0590924.06040
Record and Return to: TitleVest Agency, Inc. Brian Tormey 44 Wall Street, 10th Floor New York, NY 10005 TitleVest: #OR-OH-392349 Unison Site: #476122
WIRELESS COMMUNICATION EASEMENT AND ASSIGNMENT AGREEMENT
(WATER TOWER)
THIS WIRELESS COMMUNICATION EASEMENT AND ASSIGNMENT AGREEMENT (“Agreement”) is made as of the ____ day of ______, 2014, by and between The City of Milton, Wisconsin, a municipal corporation, whose address is 430 E. High Street, Milton, Wisconsin 53563 (“Site Owner”) and T14 Unison Site Management LLC, a Delaware limited liability company, whose address is P. O. Box 1951, Frederick, Maryland 21702-0951 (“Unison”). All references hereafter to “Unison” and “Site Owner” shall include their respective heirs, successors, personal representatives, lessees, licensees and assigns (Unison and Site Owner, collectively, “Parties”).
RECITALS
WHEREAS, Site Owner is the owner of that certain water tower and property (collectively, the “Property”) located in the City of Milton, County of ______, in the State of Wisconsin, having a street address of 5 Cedar lake Avenue, Milton, Wisconsin, and is more particularly described on Exhibit A attached hereto.
WHEREAS, the effective date of this Agreement is the earlier of the date this Agreement is recorded of public record or the funding date (“Effective Date”).
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars and other good and valuable consideration, the receipt and sufficiency of which Site Owner does hereby acknowledge and grant Unison full discharge and acquittance therefor, Site Owner and Unison agree to the following:
1. Grant of Easement.
(a) Site Owner grants, bargains, sells, transfers and conveys to Unison:
Formatted: Font: 9 pt 1 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
(i) an exclusive easement in, to, under and over the water tower portion of the Property substantially as shown and/or described on Exhibit B-1 (“Communication Easement”) for the transmission and reception of any and all wireless communication signals and the construction, maintenance, repair, replacement, improvement, operation and removal of towers, antennas, buildings, fences, gates, generators and related facilities (collectively, “Facilities”) and any related activities and uses including those necessary for Unison to comply with its obligations under the agreements listed on Exhibit C (“Existing Agreements”) together with the right to enter the Property and access the Easements described below, without notice to Site Owner, twenty-four (24) hours a day, seven (7) days a week, as may be required in connection with the activities and uses described in this Agreement, and
(ii) a non-exclusive easement in, to, under and over portions of the Property substantially as shown and/or described on Exhibit B-2 (“Access and Utility Easements;” Communication Easement and Access and Utility Easements, collectively “Easements”) for ingress and egress to and from the Communication Easement and a publicly dedicated roadway, and for the installation, repair, replacement, improvement, maintenance and removal of utilities providing service to the Communication Easement and the Facilities, and any related activities and uses; and
(iii) a non-exclusive easement in, to, and under and over portions of the Property for ingress and egress to building risers, conduits, shafts, raceways or other designated space to connect the telecommunications equipment to other locations in the building as is necessary to install wiring, electronic equipment and other personal property to support and maintain the Facilities.
(b) The Parties agree that the Communication Easement includes, without limitation, (i) the portion of the Property leased by Site Owner under the Existing Agreements, and (ii) the portion of the Property upon which any Facilities are located on the Effective Date.
2. Assignment of Existing Agreements. Site Owner transfers and assigns to Unison, as of the Effective Date, all of its right, title and interest in, to and under the Existing Agreements, including without limitation, all rents, security deposits and other monies due the Site Owner specified therein. The Parties intend that this Agreement serve as an absolute assignment and transfer to Unison of all rents and other monies due the Site Owner pursuant to the Existing Agreements. Unison assumes the obligations and liabilities of Site Owner under the Existing Agreements only to the extent that such obligations and liabilities (i) are not the responsibility of the Site Owner pursuant to the terms of this Agreement; and (ii) accrue on or after the Effective Date.
3. Use of Easements. Consistent with the uses set forth in Section 1 above, Unison shall have the right to lease, license, transfer or assign, in whole or in part, or permit the use of the Easements and/or its rights under this Agreement by any third parties including communication service providers or tower owners or operators, and any lessee or licensee under the Existing Agreements and the affiliates, agents, contractors, invitees and employees of Unison and/or Unison’s present or future lessees or licensees (collectively, “Customers”).
4. Term. This Agreement and the Easements shall continue for a term of forty (40) years, commencing on the Effective Date. Notwithstanding the foregoing, in the event Unison and Customers voluntarily cease to use the Easements (as defined in Section 1) for a period of more than five years (for reasons other than casualty, condemnation or Act of God), the Easements shall be deemed surrendered. Unison may surrender the Easements for any reason or at any time by giving thirty (30) days’ notice to Site Owner. Upon surrender, this Agreement shall be terminated, and Unison and Site Owner shall execute and record such documents reasonably required to terminate the Easements. This Agreement may not be terminated by Site Owner. Unison shall have no right to a refund of any amounts which it has paid to Site Owner prior to the date of a voluntary surrender of the Easements to Site Owner.
5. Improvements; Utilities. Formatted: List Paragraph, Left, No bullets or numbering Formatted: Font: 9 pt 2 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
Unison and its Customers, may, at their discretion and expense, construct such improvements in, to, under and over the Easements, consistent with the uses specified in Section 1, all of which shall be deemed part of the Facilities. The Facilities shall remain the property of Unison and its Customers, as applicable, and Site Owner shall possess no right, title or interest therein. In the event that utilities necessary to serve the Facilities cannot be installed within the Easements, Site Owner agrees to cooperate (at no cost to Site Owner) with Unison and to act reasonably and in good faith in granting Unison the right to locate such utilities on the Property without requiring the payment of additional fees. If necessary, Site Owner shall, upon Unison’s request, execute and record a separate written easement with Unison or with the utility company providing the utility service to reflect such right. Site Owner hereby irrevocably constitutes and appoints Unison as its true and lawful attorney-in-fact, with full power of substitution and resubstitution, to apply for and obtain any and all licenses, permits, consents or approvals which may be required in connection with the use of the Easements by Unison and as necessary to comply with applicable laws, statutes or regulations. Such new Customers shall be responsible to pay for all utility services consumed by its operations located on the Easements.
b. Any installations, alterations, additions, improvements or other work (collectively “Work”) on the Formatted: Indent: First line: 0.5" Easements including the water tower during the term of this Agreement shall require the prior written consent of Site Owner. Any such consent shall not be unreasonably withheld, denied, conditioned or delayed. If Site Owner fails to object in writing to a written request for consent, submitted with such drawings and specifications as may be required to evaluate the details of said request within thirty days after receipt, such consent shall be deemed granted. In the event Site Owner objects to the Work within said thirty (30) day period, Unison shall have the right to resubmit the Work plans in accordance with this approval process in as many additional times as is reasonably required without payment of any fee to Site Owner. Each subsequent submittal shall allow thirty days for review and approval/objection by the Site Owner. Nothing in this paragraph shall be deemed to permit interference with the operations of the Facilities and equipment existing on the date hereof, and the repair or replacement of such existing Facilities and equipment, or minor additions thereto, with comparable facilities and equipment in terms of size and external aesthetics, and swap outs for upgrading of equipment, shall be permitted without the consent from Site Owner. Unison will acquire appropriate local, state and federal approvals for any and all improvements,. The foregoing requirements shall not apply with respect to the Existing Agreements to the extent that same is inconsistent with the terms and conditions of the Existing Agreements and such improvements by such tenants shall be controlled by their respective Existing Agreements.
5. Formatted: Indent: Left: 0.25", No bullets or numbering
6. Taxes. Site Owner acknowledges that a portion of the purchase price delivered by Unison to Site Owner is for and in consideration of the continuing obligation of Site Owner to pay, on or before the due date, all present and future real property taxes, transfer taxes, penalties, interest, roll-back or additional taxes, sales and use taxes and all other fees and assessments, regardless of the taxing method (the “Taxes”) attributable to the Property, this Agreement and the Easements. Without limiting the foregoing, except to the extent Taxes are the obligation of tenants under the Existing Agreements, Site Owner shall be solely responsible for the payment of such Taxes. Within ten (10) days of receiving a request from Unison, Site Owner shall furnish to Unison a copy of each bill for any such Taxes and evidence of Site Owner’s payment of such bill. In the event that Site Owner fails to pay any Taxes when due, Unison shall have the right, but not the obligation, to pay such Taxes on behalf of Site Owner. Site Owner shall reimburse Unison for the full amount of such Taxes paid by Unison on Site Owner’s behalf within five (5) business days of Site Owner’s receipt of an invoice from Unison. Unison shall use commercially reasonable efforts to enforce the tax obligations of tenants under the Existing Agreements. Unison shall include in all future agreements with new Customers that such new Customers shall be responsible to pay any personal property taxes against such tenants equipment and facilities located on the Easements.
7. Water Tower Property Maintenance and Access. Site Owner agrees to maintain the Property. Without limiting the foregoing, except to the extent maintenance is the obligation of tenants under the Existing Agreements, Site Owner shall be solely responsible for the maintenance of the water tower or any other portion of the Property. Site Owner agrees to provide Unison and its Customers access to and from the Easements and all other space in the water tower and Property consistent with the grant of the Easements set forth in Section 1 above, twenty-four (24) Formatted: Font: 9 pt 3 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
hours a day, seven (7) days a week. Unison shall use commercially reasonable efforts to enforce the maintenance obligations of the tenants under the Existing Agreements. Unison shall include in all agreements with new Customers language substantially similar to that which is contained in paragraph 10(b) of the Existing Agreements pertaining to the painting of the water tower.
8. Representations; Other Covenants of Site Owner. Site Owner represents, warrants and agrees that: (a) it is the legal owner of indefeasible and marketable title to the Property with the right, power and authority to enter into this Agreement and to grant the Easements to Unison, and any consents and authorizations required in connection with the execution and delivery of this Agreement have been obtained; (b) except for the Existing Agreements and as disclosed on Exhibit D, no leases, mortgages, deeds of trust or other encumbrances affect the Property as of the Effective Date; (c) Site Owner will comply with all governmental laws, rules and regulations applicable to the Property; (d) Site Owner has delivered to Unison true, correct and complete copies of the Existing Agreements, and, to Site Owner’s best knowledge, no party is in default of any of their respective obligations under the Existing Agreements; (e) no party under the Existing Agreements has advised of any intention to exercise, nor have they exercised, any right of early termination set forth in its Existing Agreements, and further, no party has requested a reduction in the rental amount or escalator due under the Existing Agreements; (f) Site Owner has no past or current claims for utilities, taxes or other charges against tenants under the Existing Agreements; (g) Site Owner hereby waives all claims against said tenants and Unison for reimbursement of any future charges or expenses paid by Site Owner on behalf of Unison or said tenants unless Site Owner forwards evidence of the charge or expense and payment thereof for reimbursement within three (3) months of the date incurred; (h) as of the Effective Date, Site Owner shall not, without the prior written consent of Unison, amend or modify the Existing Agreements in any respect or exercise any rights granted by Site Owner to Unison under this Agreement, including, without limitation, any and all rights and remedies of Site Owner under the Existing Agreements; (i) notwithstanding anything to the contrary in this Agreement, Site Owner shall comply with all obligations of the lessor under the Existing Agreements which relate to the use, ownership and operation of Property; and (j) Site Owner shall not use nor permit its affiliates, licensees, invitees or agents to use any portion of the Property or any other property owned or controlled by Site Owner, either directly, indirectly or by action or inaction, in a manner which in any way could result in default of the Existing Agreements or otherwise interfere with the operations of Unison and/or any Customers.
9. Environmental Covenants and Indemnity. Site Owner represents that it has not permitted or engaged in the use of, and has no knowledge of, any substance, chemical or waste (collectively “Substance”) located on, under or about the Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. Neither Site Owner nor Unison will introduce or use any such Substance on, under or about the Property in violation of any applicable law or regulation. No underground storage tanks for petroleum or any other Substance, or underground piping or conduits, are or have previously been located on the Property, and no asbestos– containing insulation or products containing PCB or other Substances have been placed anywhere on the Property by Site Owner or, to Site Owner’s knowledge, by any prior owner or user of the Property. Site Owner and Unison shall each defend, indemnify, protect and hold the other party harmless from and against all claims, costs, fines, judgments and liabilities, including attorney’s fees and costs, arising out of or in connection with the presence, storage, use or disposal of any Substance on, under or about the Property caused by the acts, omissions or negligence of the indemnifying party and their respective agents, contractors and employees. The foregoing indemnity shall survive any termination of this Agreement.
10. General Indemnity. In addition to the Environmental Indemnity set forth above, Site Owner and Unison shall each indemnify, defend and hold the other harmless against any and all costs (including reasonable attorney’s fees) and claims of liability or loss arising (a) due to the breach of any representation, warranty or covenant of such indemnifying party set forth herein; and (b) out of the use and/or occupancy of the Property and Easements by the indemnifying party. This indemnity shall not apply to any claims to the extent arising from the gross negligence or intentional misconduct of the indemnified party.
11. Assignment; Secured Parties. Unison has the unrestricted right to assign, mortgage or grant a security interest in all of Unison’s interest in and to this Agreement and the Easements, and may assign this Agreement and the Formatted: Font: 9 pt 4 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
Easements to any such assignees, mortgagees or holders of security interests, including their successors and assigns (“Secured Party” or, collectively, “Secured Parties”). Site Owner agrees to notify Unison and Secured Parties (provided Unison has given Site Owner notice and contact information of Secured Parties) simultaneously of any default by Unison and give Secured Parties the same right to cure any default. If a termination, disaffirmation or rejection of this Agreement shall occur, pursuant to any laws (including any bankruptcy or insolvency laws), Site Owner will notify Secured Parties (provided Unison has given Site Owner notice and contact information of Secured Parties) promptly and Site Owner shall enter into a new easement agreement with any such Secured Party upon the same terms of this Agreement, without requiring the payment of any additional fees. If any Secured Party shall succeed to Unison’s interest under this Agreement, such Secured Party shall have no obligation to cure and no liability for any defaults of Unison accruing prior to the date that such Secured Party succeeds to such interest with Unison continuing to be liable for any defaults after such assignment. Site Owner will enter into modifications of this Agreement reasonably requested by any Secured Party. Site Owner hereby waives any and all lien rights it may have, statutory or otherwise, in and to the Easements and/or the Facilities or any portion thereof.
12. Estoppel Certificate. At any time during the term hereof, each party shall have the right to deliver to the other a statement of such party certifying: (i) that this Agreement is unmodified and in full force and effect (or, if there have been modifications, stating the modifications and that the modified Agreement is in full force and effect); (ii) whether or not, to the best knowledge of the responding party, the requesting party is in default in performance of any of its obligations under this Agreement, and, if so, specifying each such default; (iii) that there are no amounts due to the responding party from the requesting party; and (iv) any other information reasonably requested concerning this Agreement (the “Estoppel Certificate”). In the event the responding party fails to dispute the Estoppel Certificate by delivery to the requesting party of a notice specifying the nature and circumstances of any matter in the Estoppel Certificate that is disputed by the responding party within ten twenty (210) days of receipt of the Estoppel Certificate, then all matters specified in the Estoppel Certificate shall be deemed true and correct, and the Estoppel Certificate shall thereafter be binding on the Parties, Secured Party or any party designated by the requesting party, and all of such parties may thereafter rely on the Estoppel Certificate as a conclusive statement of fact by the responding party as to the matters set forth therein.
13. Additional Customers. It is the intent of the Parties to encourage the addition of Customers to the Property throughout and after the term hereof. Site Owner hereby irrevocably constitutes and appoints Unison as its true and lawful attorney-in-fact, with full power of substitution and resubstitution to negotiate and consummate leases, licenses and/or other agreements of use with Customers having a duration beyond the term of this Agreement. Site Owner ratifies and acknowledges the right of Unison to enter into such agreements, and the Property and Site Owner will be bound by such agreements throughout and after the termination of this Agreement for any reason. Site Owner acknowledges that all such agreements entered into by Unison shall survive the termination of this Agreement for any reason. Unison shall provide Site Owner with a copy of any new Customer agreements which shall include the name and address of the new Customer. Such agreements with new Customers shall be in compliance with all federal, state, county and local laws, rules and regulations and ordinance now or hereinafter enacted by any governmental authority or administrative agency having jurisdiction over the Property and the operations of Unison and its new Customers thereupon. Site Owner agrees that it shall not, directly or indirectly, divert or solicit the business of any of Unison’s Customers on behalf of itself or on behalf of any third party. Unison shall have a right of first refusal to acquire, on the same terms and conditions offered by or to a third party, any interest in the Property or any portion thereof being transferred by Site Owner for wireless communication purposes such as described in Section 1 above. Site Owner shall, prior to granting or transferring such interest, notify Unison with a copy of the offer including the price and terms thereof. The foregoing is a continuing right in favor of Unison and shall not be extinguished by Unison’s exercise or non-exercise of such right on one or more occasions. Upon the grant or transfer of the Property, or any portion thereof, to a third party, Site Owner shall immediately notify Unison in writing of such grant or transfer, with the name and address of the purchaser.
14. Condemnation. In the event of any condemnation of the Easements in whole or in part, Unison shall be entitled to file claims against the condemning authority for, and to receive, the value of the portion of the Property so taken on which the Easements are located, business dislocation expenses and any other award or compensation to which Formatted: Font: 9 pt 5 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
Unison may be legally entitled. Site Owner hereby assigns to Unison any such claims and agrees that any claims made by Site Owner will not reduce the claims made by Unison.
15. Covenant Running with the Land. The provisions of and covenants contained in this Agreement shall run with the land and shall bind and inure to the benefit of the Parties and their respective successors, heirs and/or assigns as their interests may appear.
16. Dispute Resolution. (a) If Unison fails to perform any of its obligations under this Agreement, Site Owner agrees to notify Unison and any Secured Parties, provided Unison has given Site Owner notice and contact information of Secured Parties, in writing of any default by Unison, and to give Unison and/or any Secured Parties the right to cure any default within a period of not less than sixty (60) days from Unison’s receipt of the written default notice. If Unison or any Secured Parties shall fail to cure any default in accordance with this Section, Site Owner agrees that its only remedies for such default shall be specific performance or damages. Any and all damages for which Site Owner may be compensated is limited to the actual damages of Site Owner and Unison’s liability shall be limited to its interest in the Property. In the event that any dispute or claim arises that could impair the use or possession of the Facilities by Unison or its Customers, Unison shall have the right to seek injunctive relief, without the necessity of posting a bond.
(b) Except as set forth in Section 16(a), in the event of any dispute arising out of this Agreement, the following dispute resolution process shall be followed: (i) upon a party’s written notice of dispute to the other party, an authorized representative of the Site Owner and Unison shall, through a good faith negotiation, attempt to settle a written resolution within thirty (30) days and (ii) if such negotiation attempts fail, either party may commence an action in the Circuit Court for Rock County Wisconsin the dispute shall be submitted by the parties to a mutually agreed upon arbitrator for a binding and final arbitration decision in accordance with the rules of the American Arbitration Association (“AAA”) and using the Federal Rules of Evidence and Civil Procedure. In the event the parties are unable to mutually agree to an arbitrator, each party shall select their own arbitrator, and each such arbitrator shall thereafter mutually agree on a third arbitrator, and the majority decision by all such arbitrators shall be final and binding on the parties. Each party shall pay one-half of all arbitrator professional fees and the prevailing party, in any proceedings under this Section 16, shall be entitled to recover all costs incurred in connection therewith, including legal fees. The prevailing party in any legal proceeding under this section 16b shall be entitled to record all costs incurred in connection with such legal proceeding including disbursement and reasonable legal fees
17. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given one (1) business day after posting with a nationally recognized overnight courier service, or the earlier of receipt or ten (10) days after posting by registered or certified mail, return receipt requested, to the addresses of Site Owner and Unison set forth on the signature page. Either party may change its notice address by providing a new recipient name and address by notice as set forth in this paragraph. Formatted: No bullets or numbering 17.18. Unison shall obtain and maintain general liability insurance with policy limits in the amount of One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury and property damage liability. Unison may satisfy this requirement by obtaining the appropriate endorsement to any master policy of liability insurance Unison may maintain. The policy shall name Site Owner as an additional insured with respect to liability arising out of Unison’s use of the Property. Certificates of insurance showing Site Owner as additional insured, premiums prepaid, shall be deposited with Site Owner within ninety (90) days of the Effective Date hereof and shall contain a provision for thirty (30) days’ notice to Site Owner prior to any cancellation or non-renewal except for ten (10) days notice for non-payment of premium. Unison shall include provisions, in future agreements between Unison and additional Customers on the Easements, which require such Customers to obtain and maintain general liability insurance with policy limits in the amount of One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury and property damage liability, naming Site Owner as an additional insured.
Formatted: Font: 9 pt 6 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
18.19. Miscellaneous. (a) This Agreement and all Exhibits attached hereto constitute the entire agreement and understanding of Site Owner and Unison with respect to the subject matter of this Agreement, and supersedes all offers, negotiations and any other written or verbal agreements; (b) any amendments to this Agreement must be in writing and executed by both parties; (c) this Agreement is governed by the laws of the State in which the Property is located; (d) if any term of this Agreement is found to be void or invalid, such provision shall be fully severable herefrom and such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect, and this Agreement shall be reformed and construed as if such invalid provision had never been contained herein, and if possible, such provisions shall be reformed to the maximum extent permitted under applicable law to render same valid, operative and enforceable to reflect the intent of the Parties as expressed herein; (e) upon the request of Unison, Site Owner shall execute a Memorandum of this Agreement and such plats or surveys as deemed reasonably necessary by Unison for recordation in the public records of the County in which the Property is located; (f) the paragraph headings of this Agreement have been inserted for convenience of reference only, and shall in no way modify or restrict the terms of this Agreement; (g) Site Owner acknowledges that Unison has not provided any legal or tax advice to Site Owner in connection with the execution of this instrument; and (h) this Agreement may be executed in any number of counterparts, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument.
[SIGNATURE PAGES TO FOLLOW.]
Formatted: Font: 9 pt 7 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
WITNESSES: "SITE OWNER":
THE CITY OF MILTON, WISCONSIN, A ______MUNICIPAL CORPORATION. Print Name: ______
______By: ______Print Name: ______Print Name: ______Title: ______
Address: 430 E. High Street City: Milton State: Wisconsin 53563 Zip: Tel: ______Fax: ______
STATE OF WISCONSIN ) ) ss: COUNTY OF ______)
On this _____ day of ______, 2014, before me, the undersigned, a Notary Public in and for said State, personally appeared ______, to me personally known, who, being by me duly sworn, did say that he/she is the ______of said corporation; that no seal has been procured by the said corporation; that said instrument was signed and sealed on behalf of said corporation by authority of its Board of Directors; and that the said ______, as such officer, acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by him/her voluntarily executed.
______Notary Public in and for the State of Ohio
Formatted: Font: 9 pt 8 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
“UNISON”:
WITNESSES: T14 UNISON SITE MANAGEMENT LLC, a Delaware limited liability company
By: Print Name: Name: Title: Authorized Signatory
Print Name: Address: P. O. Box 1951 City: Frederick State: Maryland Zip: 21702-0951 Tel: (646) 452-5455 Fax: (301) 360-0635
STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK )
On the ____ day of ______in the year of 2014, before me, the undersigned, a Notary Public in and for said state, personally appeared ______, Authorized Signatory of T14 Unison Site Management LLC, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the individual or the entity upon behalf of which the individual acted, executed the instrument.
WITNESS my hand and official seal.
Signature: My Commission Expires: Commission Number:______
Formatted: Font: 9 pt 9 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
To be completed upon receipt of title
Formatted: Font: 9 pt 10 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
EXHIBIT B-1
COMMUNICATION EASEMENT
That portion of the Property on which any Facilities exist on the date of this Agreement together with the portion of the Property leased by Site Owner under the Existing Agreements, and the portion of the Property described as follows:
[UNISON TO PREPARE LEGAL DESCRIPTION]
Site Owner herein agrees that this legal description may be substituted at a later date upon presentation of a survey of the property more clearly defining the location thereof.
Agreed and Approved:
Site Owner:
By: Name: Title: Date:
Unison:
By: Name: Title: Authorized Signatory Date:
Formatted: Font: 9 pt 11 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
EXHIBIT B-2
ACCESS AND UTILITY EASEMENTS
That portion of the Property on which any Facilities exist on the date of this Agreement or provided by Site Owner under the Existing Agreements for access and utility providers, and including the following:
All rights of ingress and egress across the Property, more fully described on Exhibit “A” hereof, to and from the Communication Easement described in Exhibit B-1 hereof, providing access to a publicly dedicated roadway, including but not limited to Vocke Street (hereinafter the “Access Easement”), along with the right to use said Access Easement for the development, repair, maintenance and removal of utilities providing service to the Communication Easement and the Facilities, as defined herein, and any related activities and uses. Said easement being more fully described as follows:
Access Easement:
[UNISON TO PREPARE LEGAL DESCRIPTION]
Utility Easement:
A non-exclusive easement in, to, under and over portions of the Property for ingress and egress to the Communication Easement, conduits, shafts, raceways or other designated space to connect the telecommunications equipment to other locations inside or outside the building as is necessary to install wiring, electronic equipment and other personal property, and to support and maintain the Facilities (hereinafter the “Utility Easement”) along with the right to use said Access Easement and Utility Easement for the development, repair, maintenance and removal of utilities providing service to the Communication Easement and the Facilities, as defined herein, and any related activities and uses. Said Utility Easement being more fully described as follows:
[UNISON TO PREPARE LEGAL DESCRIPTION]
Site Owner herein agrees that this legal description may be substituted at a later date upon presentation of a survey of the property more clearly defining the location thereof.
Agreed and Approved:
Site Owner:
The City of Napoleon, Ohio
By: Name: Title: Date:
Unison:
By: Name: Title: Authorized Signatory Date: Formatted: Font: 9 pt 12 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
EXHIBIT C
EXISTING AGREEMENTS
Site Owner assigns and transfers to Unison, as of the effective date herein, all of its right, title and interest in, to and under any existing lease agreements, and any amendments, transfers, modifications and/or assignments thereof, affecting any portion of the Property leased by Site Owner under any Existing Agreements, including, without limitation, the following:
Option Water Tower and Ground Space Lease to be completed upon receipt of title
Site Owner hereby authorizes Unison to replace this Exhibit C if information becomes available to more accurately describe the agreement(s) listed above, and upon delivery to Site Owner, such revised Exhibit C shall be deemed to be the final agreement between the Parties with respect to this Exhibit.
Agreed and Approved:
Site Owner:
By: Name: Title: Date:
Unison:
By: Name: Title: Authorized Signatory Date:
Formatted: Font: 9 pt 13 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
EXHIBIT D
TITLE ENCUMBRANCES
None
Formatted: Font: 9 pt 14 NO:0590924/06040:168826v1 NO:0590924/06040:168826v1
OFFICE OF THE MAYOR PROCLAMATION Whereas, the City of Milton has an interest in promoting the social and economic well-being of its citizens, employees and employers; and Whereas, that well-being depends upon the existence of healthy and productive employees working in safe and abuse-free work environments; and Whereas, research has documented stress-related health consequences for individuals caused by exposure to abusive work environments; and Whereas, abusive work environments are costly for employers, with consequences including reduced productivity, absenteeism, turnover, and injuries; and Whereas, protection from abusive work environments should apply to every worker, and not be limited to legally protected class status based only on race, color, gender, national origin, age, or disability; NOW, THEREFORE, I Mayor, Brett Frazier of the City of Milton, do hereby proclaim October 19-25, 2014 as FREEDOM FROM WORKPLACE BULLIES WEEK and commends the Wisconsin Healthy Workplace Advocates and the Workplace Bullying Institute, which raise awareness of the impact of, and solutions for, workplace bullying in the U.S.; and encourages all citizens to recognize this special observance.
______Mayor, Brett J. Frazier Attest: ______City Clerk
Office of the Director of Public Works
To: Mayor and Common Council From: Howard Robinson, Director of Public Works Date: September 10, 2014 Subject: Discussion and possible action regarding Ordinance #397 – Amending Section 78 to allow Professional and Non-Retail Business Offices.
Discussion Staff had reviewed the following Ordinance with the Plan Commission in regard to allowing professional and non-retail offices to be located in Manufacturing Zoned Districts as a permitted use. These businesses would not require outdoor storage/refuse, additional lighting, signage, retail business hours or regular deliveries.
Allowing this as a permitted use would create opportunities for owners of vacant office space to lease the space and allow new businesses into the City.
Staff Recommendation To approve the first reading, waive the second and third readings and adopt Ordinance #397.
Attachments Ordinance #397
ORDINANCE #397 AN ORDINANCE CREATING SECTION 78-783(16) AND SECTION 78-813(17) OF THE CODE OF ORDINANCES OF THE CITY OF MILTON
WHEREAS, the Plan Commission of the City of Milton having held a duly noticed public hearing on the proposed creation of Section 78-783(16) and the creation of Section 78-813(17) of the Code of Ordinances of the City of Milton, pursuant to which professional and non-retail business offices would become a permitted use in the M-R and M-1 Zoning Districts; and
WHEREAS, following said public hearing the plan commission having voted to recommend to the common council that Section 78-783(16) and 78-813(17) of the Code of Ordinances be created; and
WHEREAS, having considered the recommendation of the plan commission, and having also determined that permitting professional and non-retail business offices in the M-R Zoning District and M-1 Zoning District is appropriate and in the best interests of the residents and of the businesses of the City of Milton;
NOW, THEREFORE, the Common Council of the City of Milton do ordain as follows:
Section 1: Section 78-783(16) of the Code of Ordinances of the City of Milton is hereby created to read as follows:
Sec. 78-783 (16). Professional and Non-Retail Business Offices.
Section 2. Section 78-813(17) of the Code of Ordinances of the City of Milton is hereby created to read as follows:
Sec. 78-813 (17). Professional and Non-Retail Business Offices.
Section 3. This Ordinance shall take effect and be in force from and after its passage and publication.
Approved by the Common Council of the City of Milton this ____ day of ______, 2014.
By:
______Brett Frazier, Mayor Attest:
______Leanne Schroeder, Acting City Clerk
1st Reading: 2nd Reading: 3rd Reading: Public Hearing: 09/09/2014 Adopted: Published:
Effect of Ordinance: Permits professional and non-retail business offices in the M-R Restricted Industrial District and in the M-1 Light Industrial District.