E4. Sprint Contract-NONE 4111111311111
CITY OF
KALISPELL
MEMO
TO: Doug Russell, City Manager
FROM: Susie Turner, P.E., Public Works Director
SUBJECT: Sprint Spectrum LP -Water Tower Lease Agreement
MEETING: February 16, 2021
BACKGROUND: Sprint Spectrum LP, has requested a lease renewal to continue to utilize the
Buffalo Hill Water Tower for installing, maintaining and operating radio communication
equipment, antennas, appurtenance, and for land space sufficient for the installation of
equipment, wires, poles, cables, conduit, and pipes.
There are several private and public agencies that are currently utilizing the tower for
communications. A complete list of users is summarized below.
Company
Contract Term
Bullitt Sites
May 2020 thru May 2040
Verizon
Nov 2016 thru Nov 2036
Sprint Spectrum LP - Renewal
May 2020 thru May 2040
Intero erabili MT -911
May 2010-indefinite
Intero erabili MT — National Guard
February 2010-indefinite
City of Kalispell Radio Re eater-SCADA
1990s
Public Works has been working with Sprint Spectrum LP and has preliminarily approved the
layout of the easements, cables, building use, and equipment attachments to the tower. The
proposed agreement is similar to other contracts in that it protects the intended use of the tower
for Public Water Supply and has been reviewed and approved by the City Attorney's office.
FISCAL EFFECTS: The Agreement's lease amount is $28,639 per year with a 3% annual
increase. The Agreement will automatically be extended for four (4) additional five (5) year
terms unless Sprint Spectrum LP or the City terminates the lease under the conditions defined in
the Agreement.
ACTION REQUESTED: Motion to authorize the City Manager to sign the finalized Water
Tower Lease Agreement between Sprint Spectrum LP and the City of Kalispell.
ALTERNATIVES: As suggested and approved by the City Council.
ATTACHMENTS: Enclosed for your reference is the proposed Agreement. The final
agreement will include an updated Exhibit A site layout.
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WATER TOWER LEASE AGREEMENT
This Water Tower Lease Agreement ("Agreement"), made this day of
, 2021 (the "Effective Date"), between the City of Kalispell, Montana, a municipal
corporation, with its principal offices at 201 First Avenue East, Kalispell, Montana 59901,
hereinafter designated LESSOR and Sprint Spectrum L.P., a Delaware limited partnership with its
principal offices at 6220 Sprint Parkway, Overland Park, Kansas, hereinafter designated LESSEE.
The LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties" or
individually as the "Parry".
WITNESSETH
In consideration of the mutual covenants contained herein and intending to be legally bound
hereby, the Parties hereto agree as follows:
1. PREMISES- LESSOR hereby leases to the LESSEE a portion of that certain space
("the Tower Space") on the LESSOR's water tower, hereinafter referred to as the "Tower", located
at 100 Buffalo Hill Drive, Kalispell, County of Flathead, State of Montana, 59901, as shown on
Exhibit "A" attached hereto and made a part hereof (the entirety of LESSOR's property is referred
to hereinafter as the "Property"), together with a 11'-8" x 22'-10" parcel of land (the "Land Space")
sufficient for the installation of LESSEE's equipment; together with any rights -of -way (the "Rights -
of -Way") over and through the Property between the Land Space and the Tower Space for the
installation and maintenance of utility wires, poles, cables, conduits, and pipes. The Tower Space,
Land Space, and Rights -of -Way, if any, are substantially described in Exhibit "A", attached hereto
and made a part hereof demised premises and are collectively referred to hereinafter as the
"Premises".
LESSOR hereby grants permission to LESSEE to install, maintain and operate the radio
communications equipment, antennas and appurtenances described in Exhibit "B" attached hereto.
2. SURVEY. LESSOR also hereby grants to LESSEE the right to survey the Property
and Premises, and any such survey shall then become Exhibit "C" which shall be attached hereto
and made a part hereof, and shall control in the event of boundary and access discrepancies between
it and Exhibit "A". Cost for such work shall be borne by the LESSEE.
3. TERM, RENTAL, ELECTRICAL.
a. This Agreement shall be effective as of the date of execution by both
Parties, provided, however, the initial term shall be for five (5) years ("Initial Term") and shall
commence on the Commencement Date (as hereinafter defined) at which time rental payments
shall commence and be due at a total annual rental of Twenty Eight Thousand Six Hundred Thirty
SP67XC171 NLG-21537 AMD SP67XC171-A-001
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Nine and 00/100 Dollars ($28,639.00), to be paid in equal monthly installments on the first day of
each month, in advance, to LESSOR or to such other person, firm or place as LESSOR may, from
time to time, designate in writing at least thirty (30) days in advance of any rental payment date
by notice given in accordance with Paragraph 25 below. The Agreement shall commence on May
17, 2020 ("Commencement Date"). LESSOR and LESSEE acknowledge and agree that initial
rental payment(s) and any due and owing back rental payment(s) shall be paid by LESSEE within
thirty (30) days of the Effective Date. By way of illustration of the preceding sentence, if the
Commencement Date is January 1, LESSEE shall send to the LESSOR the rental payments for
January 1 and February 1 by February 1.
Upon agreement of the Parties, LESSEE may pay rent by electronic funds transfer and in
such event, LESSOR agrees to provide to LESSEE bank routing information for such purpose
upon request of LESSEE.
b. LESSOR hereby agrees to provide to LESSEE certain documentation (the
"Rental Documentation") evidencing LESSOR's interest in, and right to receive payments under,
this Agreement, including without limitation: (i) documentation, acceptable to LESSEE in
LESSEE's reasonable discretion, evidencing LESSOR's good and sufficient title to and/or interest
in the Property and right to receive rental payments and other benefits hereunder; and (ii) a
complete and fully executed Internal Revenue Service Form W-9, or equivalent, in a form
acceptable to LESSEE, for any party to whom rental payments are to be made pursuant to this
Agreement From time to time during the Term of this Agreement and within thirty (30) days of a
written request from LESSEE, LESSOR agrees to provide updated Rental Documentation in a
form reasonably acceptable to LESSEE. The Rental Documentation shall be provided to LESSEE
in accordance with the provisions of and at the address given in Paragraph 25.
Within fifteen (15) days of obtaining an interest in the Property or this Agreement, any
assignee(s), transferee(s) or other successor(s) in interest of LESSOR shall provide to LESSEE
Rental Documentation in the manner set forth in the preceding paragraph. From time to time
during the Term of this Agreement and within thirty (30) days of a written request from LESSEE,
any assignee(s) or transferee(s) of LESSOR agrees to provide updated Rental Documentation in a
form reasonably acceptable to LESSEE.
C. LESSEE has installed a separate meter for the measurement of its electric
power and will continue to pay for its own utilities used. LESSEE shall be permitted to install,
maintain and/or provide access to and use of, as necessary (during any power interruption at the
Premises), a temporary power source.
4. EXTENSIONS. This Agreement shall automatically be extended for four (4)
additional and successive five (5) year terms (each an "Extension Term") (with the Initial Term,
collectively, the "Term") unless LESSEE terminates this Agreement at the end of the then -current
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Initial Term or Extension Term by giving LESSOR written notice of the intent to terminate at least
six (6) months prior to the end of the then current Initial Term or Extension Term.
5. ANNUAL RENTAL INCREASES. The annual rental for the second (2nd) year of
the Initial Term and for each year thereafter, including any and all Extension Terms, shall be
equal to 103% of the annual rental payable with respect to the immediately preceding year.
6. [INTENTIONALLY DELETED].
7. [INTENTIONALLY DELETED].
8. USE, GOVERNMENTAL APPROVALS. LESSEE shall use the Premises for the
purpose of constructing, maintaining, repairing, altering and operating a communications facility
and uses incidental thereto. All improvements, equipment, antennas and conduits shall be at
LESSEE's expense and their installation shall be at the discretion and option of LESSEE. LESSEE
shall have the right to replace, repair, add or otherwise modify its utilities, equipment, antennas
and/or conduits or any portion thereof and the frequencies over which the equipment operates,
whether the equipment, antennas, conduits or frequencies are specified or not on any exhibit
attached hereto, during the Term. It is understood and agreed that LESSEE's ability to use the
Premises is contingent upon its obtaining and maintaining, after the execution date of this
Agreement, all of the certificates, permits and other approvals (collectively the "Governmental
Approvals") that may be required by any Federal, State or Local authorities as well as satisfactory
soil boring tests and structural analysis which will permit LESSEE use of the Premises as set forth
above. LESSOR shall cooperate with LESSEE in its effort to obtain such approvals and shall take
no action which would adversely affect the status of the Property with respect to the proposed use
thereof by LESSEE. In the event that (i) any of such applications for such Governmental
Approvals should be finally rejected; (ii) any Governmental Approval issued to LESSEE is
canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority; (iii)
LESSEE determines that such Governmental Approvals may not be obtained in a timely manner;
(iv) LESSEE determines that any soil boring tests or structural analysis is unsatisfactory; (v)
LESSEE determines that the Premises is no longer technically or structurally compatible for its
use, or (vi) LESSEE, in its sole discretion, determines that the use the Premises is obsolete or
unnecessary, LESSEE shall have the right to terminate this Agreement. Notice of LESSEE's
exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return
receipt requested, and shall be effective upon the mailing of such notice by LESSEE, or upon such
later date as designated by LESSEE. All rentals paid to said termination date shall be retained by
LESSOR. Upon such termination, this Agreement shall be of no further force or effect except to
the extent of the representations, warranties and indemnities made by each Party to the other
hereunder. Otherwise, the LESSEE shall have no further obligations for the payment of rent to
LESSOR.
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9. INDEMNIFICATION. Subject to Paragraph 10 below, each Party shall indemnify
and hold the other harmless against any claim of liability or loss from personal injury or property
damage resulting from or arising out of the negligence or willful misconduct of the indemnifying
Party, its employees, contractors or agents, except to the extent such claims or damages may be
due to or caused by the negligence or willful misconduct of the other Party, or its employees,
contractors or agents.
10. INSURANCE.
a. Notwithstanding the indemnity in Paragraph 9, the Parties hereby waive and
release any and all rights of action for negligence against the other which may hereafter arise on
account of damage to the Premises or to the Property, resulting from any fire, or other casualty of
the kind covered by standard fire insurance policies with extended coverage, regardless of whether
or not, or in what amounts, such insurance is now or hereafter carried by the Parties, or either of
them. These waivers and releases shall apply between the Parties and they shall also apply to any
claims under or through either Party as a result of any asserted right of subrogation. All such
policies of insurance obtained by either Party concerning the Premises or the Property, except for
workers' compensation, shall waive the insurer's right of subrogation against the other Party.
b. LESSEE will maintain at its own cost;
Commercial General Liability insurance with limits not less than
$1,000,000 for injury to or death of one or more persons in any one
occurrence and $500,000 for damage or destruction to property in
any one occurrence.
ii. Commercial Auto Liability insurance on all owned, non -owned and
hired automobiles with a minimum combined limit of not less than
one million ($1,000,000) per occurrence.
iii. Workers Compensation insurance providing the statutory benefits
and not less than one million ($1,000,000) of Employers Liability
coverage.
LESSEE will include the LESSOR as an additional insured on the Commercial General
Liability and Auto Liability policies.
C. LESSOR will maintain at its own cost commercial general liability
insurance with limits not less than $1,000,000 for injury to or death of one or more persons in any
one occurrence and $500,000 for damage or destruction to property in any one occurrence.
LESSOR will include the LESSEE as an additional insured.
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d. In addition, LESSOR shall obtain and keep in force during the Term a
policy or policies insuring against loss or damage to the Building with a commercially reasonable
valuation, as the same shall exist from time to time without a coinsurance feature. LESSOR's
policy or policies shall insure against all risks of direct physical loss or damage (except the perils
of flood and earthquake unless required by a lender or included in the base premium), including
coverage for any additional costs resulting from debris removal and reasonable amounts of
coverage for the enforcement of any ordinance or law regulating the reconstruction or replacement
of any undamaged sections of the Building required to be demolished or removed by reason of the
enforcement of any building, zoning, safety or land use laws as the result of a covered loss, but not
including plate glass insurance.
11. LIMITATION OF LIABILITY. Except for indemnification pursuant to paragraphs
9 and 31, neither Party shall be liable to the other, or any of their respective agents, representatives,
employees for any lost revenue, lost profits, loss of technology, rights or services, incidental,
punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of
service, even if advised of the possibility of such damages, whether under theory of contract, tort
(including negligence), strict liability or otherwise.
12. ANNUAL TERMINATION. Notwithstanding anything to the contrary contained
herein, provided LESSEE is not in default hereunder beyond applicable notice and cure periods,
LESSEE shall have the right to terminate this Agreement upon the annual anniversary of the
Commencement Date provided that three (3) months prior notice is given to LESSOR.
13. ACCESS TO TOWER. LESSOR agrees the LESSEE shall have free access
to the Tower at all times for the purpose of installing and maintaining the said equipment.
LESSOR shall furnish LESSEE with necessary means of access for the purpose of ingress and
egress to this site and Tower location. It is agreed, however, that only authorized engineers,
employees or properly authorized contractors of LESSEE or persons under their direct supervision
will be permitted to enter said premises. LESSOR shall be on site at all times when LESSEE or
its representative is on site. Except in the case of an emergency, LESSEE will make a request to
the LESSOR to access the site at least 24 hours in advance. Access to the Tower will be free
during City of Kalispell's normal operating hours. All other times will be charged to the LESSOR
at a rate of seventy-five dollars ($75.00) an hour for a minimum of two (2) hours.
14. TOWER COMPLIANCE. LESSOR covenants that it will keep the Tower in good
repair as required by all Laws (as defined in Paragraph 35 below). The LESSOR shall also comply
with all rules and regulations enforced by the Federal Communications Commission with regard
to the lighting, marking and painting of towers. If the LESSOR fails to make such repairs,
including maintenance, the LESSEE may make the repairs and the costs thereof shall be payable
to the LESSEE by the LESSOR if the cost is agreed upon and documented by both Parties.
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No materials may be used in the installation of the antennas or transmission lines that will
cause corrosion or rust or deterioration of the Tower structure or its appurtenances.
Excepting routine maintenance, repair and like -for -like swap, all other changes to LES SEE's
equipment on the Tower due to new installation or change in equipment location shall require
LESSOR's prior review and approval ("Modifications"). Prior to commencement of any
Modifications LESSEE shall provide plans for LESSOR's reasonable approval, not to be
unreasonably conditioned, withheld, or delayed. If LESSOR does not approve of such plans within
fifteen (15) days of delivery of such plans to LESSOR, LESSOR shall be deemed to have approved
such plans. All damage created by LESSEE to the Tower or City property, due to Modifications,
will be the responsibility of LESSEE to repair to prior conditions subject to LESSOR's reasonable
approval.
All antenna(s) on the Tower must be identified by a marking fastened securely to its bracket
on the Tower and all transmission lines are to be tagged at the conduit opening where it enters any
user's equipment space.
Upon request of the LESSOR, LESSEE agrees to relocate its equipment on a temporary basis
to another location on the Property, hereinafter referred to as the "Temporary Relocation," for the
purpose of LESSOR performing maintenance, repair or similar work at the Property or on the Tower
provided:
a. The Temporary Relocation is similar to LESSEE's existing location in size and is fully
compatible for LESSEE's use, in LESSEE's reasonable determination;
b. LESSOR pays all costs incurred by LESSEE for relocating LESSEE's equipment to
the Temporary Relocation and improving the Temporary Relocation so that it is fully
compatible for the LESSEE's use, in LESSEE's reasonable determination;
c. LESSOR gives LESSEE at least ninety (90) days written notice prior to requiring
LESSEE to relocate;
d. LESSEE's use at the Premises is not interrupted or diminished during the relocation
and LESSEE is allowed, if necessary, in LESSEE's reasonable determination, to place
a temporary installation on the Property during any such relocation; and
e. Upon the completion of any maintenance, repair or similar work by LESSOR,
LESSEE is permitted to return to its original location from the temporary location
with all costs for the same being paid by LESSOR.
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15. INTERFERENCE. LESSEE agrees to install equipment of the type and frequency
which will not cause harmful interference which is measurable in accordance with then existing
industry standards to any equipment of LESSOR or other lessees of the Property which existed on
the Property prior to the date LESSEE's equipment was installed on the Tower. In the event any
after -installed LESSEE's equipment causes such interference, and after LESSOR has notified
LESSEE in writing of such interference, LESSEE will take all commercially reasonable steps
necessary to correct and eliminate the interference, including but not limited to, at LESSEE's
option, powering down such equipment and later powering up such equipment for intermittent
testing. In no event will LESSOR be entitled to terminate this Agreement or relocate the
equipment as long as LESSEE is making a good faith effort to remedy the interference issue.
LESSOR agrees that LESSOR and/or any other tenants of the Property who currently have or in
the future take possession of the Property will be permitted to install only such equipment that is
of the type and frequency which will not cause harmful interference which is measurable in
accordance with then existing industry standards to the then existing equipment of LESSEE. The
Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the
provisions of this Paragraph and therefore, either Party shall have the right to equitable remedies,
such as, without limitation, injunctive relief and specific performance._
16. REMOVAL AT END OF TERM. LESSEE shall, upon expiration of the Term, or
within ninety (90) days after any earlier termination of the Agreement, remove its building(s),
antenna(s), equipment, conduits, fixtures and all personal property and restore the Premises to its
original condition, reasonable wear and tear and casualty damage excepted. LESSOR agrees and
acknowledges that all of the equipment, conduits, fixtures and personal property of LESSEE shall
remain the personal property of LESSEE and LESSEE shall have the right to remove the same at
any time during the Term, whether or not said items are considered fixtures and attachments to
real property under applicable Laws. If such time for removal causes LESSEE to remain on the
Premises after termination of this Agreement, LESSEE shall pay rental at the then existing monthly
rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time
as the removal of the building, antenna structure, fixtures and all personal property are completed.
17. HOLDOVER. LESSEE has no right to retain possession of the Premises or any
part thereof beyond the expiration of that removal period set forth in Paragraph 16 herein, unless
the Parties are negotiating a new lease or lease extension in good faith. In the event that the Parties
are not in the process of negotiating a new lease or lease extension in good faith, LESSEE holds
over in violation of Paragraph 16 and this Paragraph 17, then the rental then in effect payable from
and after the time of the expiration or earlier removal period set forth in Paragraph 16 shall be
equal to the rental applicable during the month immediately preceding such expiration or earlier
termination.
18. RIGHT OF FIRST REFUSAL. If LESSOR elects, during the Term (i) to sell or
otherwise transfer all or any portion of the Property, whether separately or as part of a larger parcel
of which the Property is a part, or (ii) grant to a third party by easement or other legal instrument
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an interest in and to that portion of the Tower and or Property occupied by LESSEE, or a larger
portion thereof, for the purpose of operating and maintaining communications facilities or the
management thereof, with or without an assignment of this Agreement to such third party,
LESSEE shall have the right of first refusal to meet any bona fide offer of sale or transfer on the
same terms and conditions of such offer. If LESSEE fails to meet such bona fide offer within thirty
(30) days after written notice thereof from LESSOR, LESSOR may sell or grant the easement or
interest in the Property or portion thereof to such third person in accordance with the terms and
conditions of such third party offer. For purposes of this Paragraph, any transfer, bequest or devise
of LESSOR's interest in the Property as a result of the death of LESSOR, whether by will or
intestate succession, or any conveyance to LESSOR's family members by direct conveyance or by
conveyance to a trust for the benefit of family members shall not be considered a sale of the
Property for which LESSEE has any right of first refusal.
19. RIGHTS UPON SALE. Should LESSOR, at any time during the Term decide (i)
to sell or transfer all or any part of the Property or the Tower thereon to a purchaser other than
LESSEE, or (ii) to grant to a third party by easement or other legal instrument an interest in and to
that portion of the Tower and or Property occupied by LESSEE, or a larger portion thereof, for the
purpose of operating and maintaining communications facilities or the management thereof, such
sale or grant of an easement or interest therein shall be under and subject to this Agreement and
any such purchaser or transferee shall recognize LESSEE's rights hereunder under the terms of
this Agreement. To the extent that LESSOR grants to a third party by easement or other legal
instrument an interest in and to that portion of the Tower and/or Property occupied by LESSEE
for the purpose of operating and maintaining communications facilities or the management thereof
and in conjunction therewith, assigns this Agreement to said third party, LESSOR shall not be
released from its obligations to LESSEE under this Agreement, and LESSEE shall have the right
to look to LESSOR and the third party for the full performance of this Agreement.
20. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and
performing the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises.
21. TITLE. LESSOR represents and warrants to LESSEE as of the execution date of
this Agreement, and covenants during the Term that LESSOR is seized of good and sufficient title
and interest to the Property and has full authority to enter into and execute this Agreement.
LESSOR further covenants during the Term that there are no liens, judgments or impediments of
title on the Property, or affecting LESSOR's title to the same and that there are no covenants,
easements or restrictions which prevent or adversely affect the use or occupancy of the Premises
by LESSEE as set forth above.
22. INTEGRATION. It is agreed and understood that this Agreement contains all
agreements, promises and understandings between LESSOR and LESSEE and that no verbal or
oral agreements, promises or understandings shall be binding upon either LESSOR or LESSEE in
any dispute, controversy or proceeding at law, and any addition, variation or modification to this
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Agreement shall be void and ineffective unless made in writing signed by the Parties or in a written
acknowledgment in the case provided in Paragraph 3. In the event any provision of the Agreement
is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability
of the remaining provisions of this Agreement. The failure of either Party to insist upon strict
performance of any of the terms or conditions of this Agreement or to exercise any of its rights
under the Agreement shall not waive such rights and such Party shall have the right to enforce
such rights at any time and take such action as may be lawful and authorized under this Agreement,
in law or in equity.
23. GOVERNING LAW. This Agreement and the performance thereof shall be
governed, interpreted, construed and regulated by the Laws of the State in which the Property is
located.
24. ASSIGNMENT, SUBLEASING. This Agreement may be sold, assigned or
transferred by the LESSEE without any approval or consent of the LESSOR to the LESSEE's
principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially
all of LESSEE's assets in the market defined by the Federal Communications Commission in
which the Property is located by reason of a merger, acquisition or other business reorganization.
As to other parties, this Agreement may not be sold, assigned or transferred without the written
consent of the LESSOR, which such consent will not be unreasonably withheld, delayed or
conditioned. No change of stock ownership, partnership interest or control of LESSEE or transfer
upon partnership or corporate dissolution of LESSEE shall constitute an assignment hereunder.
LESSEE shall not sublease the Premises without the prior written consent of LESSOR.
25. NOTICES. All notices hereunder must be in writing and shall be deemed validly
given if sent by certified mail, return receipt requested or by commercial courier, provided the
courier's regular business is delivery service and provided further that it guarantees delivery to the
addressee by the end of the next business day following the courier's receipt from the sender,
addressed as follows (or any other address that the Party to be notified may have designated to the
sender by like notice):
LESSOR: City of Kalispell, Montana
201 First Avenue East
Kalispell, Montana 59901
Telephone: (406) 758-7720
LESSEE:
Sprint Property Services
Sprint Site ID No.: SP67XC 171 / MT05060
Mailstop KSOPHDO101-Z2650
6220 Sprint Parkway
Overland Park, KS 66251-2650
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with a copy to:
Sprint Law Department
Attn.: Real Estate Attorney
Sprint Site ID No.: SP67XC 171 / MT05060
Mailstop KSOPHDO 10 1 -Z2020
6220 Sprint Parkway
Overland Park, KS 66251-2020
SP67XC171 / MT05060
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained
pursuant to the foregoing.
26. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal
representative, successors and assigns of the Parties hereto.
27. [Intentionally Deleted]
28. RECORDING. LESSOR agrees to execute a Memorandum of this Agreement at
LESSEE's request, which LESSEE may record with the appropriate recording officer. The date
set forth in the Memorandum of Lease is for recording purposes only and bears no reference to
commencement of either the Term or rent payments.
29. DEFAULT.
a. In the event there is a breach by LESSEE with respect to any of the
provisions of this Agreement or its obligations under it, including the rental payment, LESSOR
shall give LESSEE written notice of such breach. After receipt of such written notice, LESSEE
shall have fifteen (15) days in which to cure any monetary breach and thirty (30) days in which to
cure any non -monetary breach, provided LESSEE shall have such extended period as may be
required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires
more than thirty (30) days and LESSEE commences the cure within the thirty (30) day period and
thereafter continuously and diligently pursues the cure to completion. LESSOR may not maintain
any action or effect any remedies for default against LESSEE unless and until LESSEE has failed
to cure the breach within the time periods provided in this Paragraph.
b. In the event there is a breach by LESSOR with respect to any of the
provisions of this Agreement or its obligations under it, LESSEE shall give LESSOR written notice
of such breach. After receipt of such written notice, LESSOR shall have thirty (30) days in which
to cure any such breach, provided LESSOR shall have such extended period as may be required
beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than
thirty (30) days and LESSOR commences the cure within the thirty (30) day period and thereafter
continuously and diligently pursues the cure to completion. LESSEE may not maintain any action
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or effect any remedies for default against LESSOR unless and until LESSOR has failed to cure the
breach within the time periods provided in this Paragraph. Notwithstanding the foregoing to the
contrary, it shall be a default under this Agreement if LESSOR fails, within five (5) days after
receipt of written notice of such breach, to perform an obligation required to be performed by
LESSOR if the failure to perform such an obligation interferes with LESSEE's ability to conduct
its business on the Property; provided, however, that if the nature of LESSOR's obligation is such
that more than five (5) days after such notice is reasonably required for its performance, then it
shall not be a default under this Agreement if performance is commenced within such five (5) day
period and thereafter diligently pursued to completion.
30. REMEDIES. Upon a default, the non -defaulting Party may at its option (but
without obligation to do so), perform the defaulting Party's duty or obligation on the defaulting
Party's behalf, including but not limited to the obtaining of reasonably required insurance policies.
The costs and expenses of any such performance by the non -defaulting Party shall be due and
payable by the defaulting Party upon invoice therefor. In the event of a default by either Party
with respect to a material provision of this Agreement, without limiting the non -defaulting Party
in the exercise of any right or remedy which the non -defaulting Party may have by reason of such
default, the non -defaulting Party may terminate the Agreement and/or pursue any remedy now or
hereafter available to the non -defaulting Party under the Laws or judicial decisions of the state in
which the Premises are located; provided, however, LESSOR shall use reasonable efforts to
mitigate its damages in connection with a default by LESSEE. If LESSEE so performs any of
LESSOR's obligations hereunder, the full amount of the reasonable and actual cost and expense
incurred by LESSEE shall immediately be owing by LESSOR to LESSEE, and LESSOR shall pay
to LESSEE upon demand the full undisputed amount thereof with interest thereon from the date
of payment at the greater of (i) ten percent (10%) per annum, or (ii) the highest rate permitted by
applicable Laws. Notwithstanding the foregoing, if LESSOR does not pay LESSEE the full
undisputed amount within thirty (30) days of its receipt of an invoice setting forth the amount due
from LESSOR, LESSEE may offset the full undisputed amount, including all accrued interest, due
against all fees due and owing to LESSOR until the full undisputed amount, including all accrued
interest, is fully reimbursed to LESSEE.
31. ENVIRONMENTAL.
a. LESSOR will be responsible for all obligations of compliance with any and
all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or
policies of any governmental authorities regulating or imposing standards of liability or standards
of conduct with regard to any environmental or industrial hygiene conditions or concerns as may
now or at any time hereafter be in effect, that are or were in any way related to activity now
conducted in, on, or in any way related to the Tower or Property, unless such conditions or
concerns are caused by the specific activities of LESSEE in the Premises.
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DocuSign Envelope ID: A2C40DF9-3165-4894-A5EE-49D15C62038A
Cedar - Kalispell H2O SP67XC171 / MT05060
b. LESSOR shall hold LESSEE harmless and indemnify LESSEE from and
assume all duties, responsibility and liability at LESSOR's sole cost and expense, for all duties,
responsibilities, and liability (for payment of penalties, sanctions, forfeitures, losses, costs, or
damages) and for responding to any action, notice, claim, order, summons, citation, directive,
litigation, investigation or proceeding which is in any way related to: a) failure to comply with any
environmental or industrial hygiene law, including without limitation any regulations, guidelines,
standards, or policies of any governmental authorities regulating or imposing standards of liability
or standards of conduct with regard to any environmental or industrial hygiene concerns or
conditions as may now or at any time hereafter be in effect, unless such non-compliance results
from conditions caused by LESSEE; and b) any environmental or industrial hygiene conditions
arising out of or in any way related to the condition of the Tower or Property or activities conducted
thereon, unless such environmental conditions are caused by LESSEE.
32. CASUALTY. In the event the Tower or any part thereof is damaged or destroyed
by the elements or any other cause, LESSOR may elect to repair, rebuild, or restore the Tower to
the same condition as it was immediately prior to such casualty within a reasonable time following
said occurrence. If LESSOR has not or cannot effect repairs or replacement of the Tower within
thirty (30) days of such casualty, LESSEE shall have the right, upon ten (10) days written notice,
to terminate this Agreement. If the Tower is repaired, the payments required by this Agreement
shall be abated as of the date of the casualty until the Tower, in both LESSOR'S and LESSEE's
reasonable opinion, is restored to a usable condition for both Parties' operation. If LESSOR elects
not to repair, restore, or rebuild the water tower, LESSOR may terminate this Agreement by giving
written notice of such termination to LESSEE within thirty (30) days of such casualty. If this
Agreement is terminated by either LESSEE or LESSOR, all payments and other consideration
required herein shall terminate as of the date of such casualty. LESSOR shall not be responsible
or liable to LESSEE for any loss, damage, expense that may be occasioned by, through, or in
connection with any acts or omissions of the other tenants occupying the water tower, or any part
of the Premises adjacent to or connected with the water tower, or for any structural or power
failures or destruction or damage to the water tower or to LESSEE equipment.
33. CONDEMNATION. In the event of any condemnation of all or any portion of the
Property, this Agreement shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever occurs first. If as a result of a partial condemnation
of the Premises or Tower, LESSEE, in LESSEE's sole discretion, is unable to use the Premises for
the purposes intended hereunder, or if such condemnation may reasonably be expected to disrupt
LESSEE's operations at the Premises for more than forty-five (45) days, LESSEE may, at
LESSEE's option, to be exercised in writing within fifteen (15) days after LESSOR shall have
given LESSEE written notice of such taking (or in the absence of such notice, within fifteen (15)
days after the condemning authority shall have taken possession) terminate this Agreement as of
the date the condemning authority takes such possession. LESSEE may on its own behalf make a
claim in any condemnation proceeding involving the Premises for losses related to the equipment,
conduits, fixtures, its relocation costs and its damages and losses (but not for the loss of its
12
DocuSign Envelope ID: A2C40DF9-3165-4894-A5EE-49D15C62038A
Cedar - Kalispell H2O SP67XC171 / MT05060
leasehold interest). Any such notice of termination shall cause this Agreement to expire with the
same force and effect as though the date set forth in such notice were the date originally set as the
expiration date of this Agreement and the Parties shall make an appropriate adjustment as of such
termination date with respect to payments due to the other under this Agreement. If LESSEE does
not terminate this Agreement in accordance with the foregoing, this Agreement shall remain in full
force and effect as to the portion of the Premises remaining, except that the rent shall be reduced
in the same proportion as the rentable area of the Premises taken bears to the total rentable area of
the Premises. In the event that this Agreement is not terminated by reason of such condemnation,
LESSOR shall promptly repair any damage to the Premises caused by such condemning authority.
34. SUBMISSION OF AGREEMENT/PARTIAL INVALIDITY/AUTHORITY. The
submission of this Agreement for examination does not constitute an offer to lease the Premises
and this Agreement becomes effective only upon the full execution of this Agreement by the
Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and
shall not invalidate the remaining provisions of this Agreement. Each of the Parties hereto
warrants to the other that the person or persons executing this Agreement on behalf of such Party
has the full right, power and authority to enter into and execute this Agreement on such Party's
behalf and that no consent from any other person or entity is necessary as a condition precedent
to the legal effect of this Agreement.
35. APPLICABLE LAWS. During the Term, LESSOR shall maintain the Property and
all structural elements of the Premises in compliance with all applicable laws, rules, regulations,
ordinances, directives, covenants, easements, zoning and land use regulations, and restrictions of
record, permits, building codes, and the requirements of any applicable fire insurance underwriter
or rating bureau, now in effect or which may hereafter come into effect (including, without
limitation, the Americans with Disabilities Act and laws regulating hazardous substances)
(collectively "Laws"). LESSEE shall, in respect to the condition of the Premises and at
LESSEE's sole cost and expense, comply with (a) all Laws relating solely to LESSEE's specific
and unique nature of use of the Premises (other than general office use); and (b) all building codes
requiring modifications to the Premises due to the improvements being made by LESSEE in the
Premises.
36. SURVIVAL. The provisions of the Agreement relating to indemnification from one
Party to the other Party shall survive any termination or expiration of this Agreement.
Additionally, any provisions of this Agreement which require performance subsequent to the
termination or expiration of this Agreement shall also survive such termination or expiration.
37. CAPTIONS. The captions contained in this Agreement are inserted for convenience
only and are not intended to be part of the Agreement. They shall not affect or be utilized in the
construction or interpretation of the Agreement.
[SIGNATURES TO APPEAR ON NEXT PAGE]
13
DocuSign Envelope ID: A2C40DF9-3165-4894-A5EE-49D15C62038A
Cedar - Kalispell H2O SP67XC171 / MT05060
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their
respective seals the day and year first above written.
14
LESSOR: City of Kalispell, Montana,
a municipal corporation
By:
Name:
Title:
Date:
LESSEE: Sprint Spectrum L.P., a Delaware
limited partnership
B CDocuSigned by:
:�9" %fit lw" v
Name: me rt
Title:Director Technology Procurement
Date: 2/3/2021
EpSF p�
y` E_ ICeGGct DWhaW 2/3/2021
a\Approved/� T-Mob e Contract Attorney, as to form
SP67XC171 NLG-21537 AMD SP67XC171-A-001
DocuSign Envelope ID: A2C40DF9-3165-4894-A5EE-49D15C62038A
Cedar - Kalispell H2O SP67XC171 / MT05060
EXHIBIT "A" (Page 1 of 1)
Legal Description
A tract of land situated, lying and being in Lot 14 of the Southeast Quarter of the Southwest
Quarter of Section 6, Township 28 North, Range 21 West, M.P.M., and more particularly
described as follows, to -wit:
DRAFT L4
x
Ebsnxc cENERATORs
Rr oTN,xs yr oniExs eLrex
x EtNsnxc PROPAIE � `��
rANf gY OTNERs �
! 1
/ NOTE:
/ NO IMPEDIMENTS WILL EE INSTALLED �
I TO LIMIT ACCESSIBILITY OR SPACE
x T. IXl T. ON TH
WATER 1
AutoCA6 SHIP iNat
NOTE: NO IMPEDIMENTS WILL BE INSTALLED TO LIMIT
1 ACCESSIBILITY OR SPACE ON THE CATWALK.
A �
4 �
1 1
l �
x � �
`4 wia NO
NTT'�"nn"nrf NCON o,TN soE
NOTEi. IELCVE BLL uxusen moll CrHLEx 11 �!' !!
2 LA9f1 ll1 fTSIING ANN NEw CJiNLE4 \ r — — — �' /
= u�l pr TD lour
\` J
i
X �
Cki-
-NAING 6 NT 19KxIHxEMG SPIM-! p EWp uDUHTlO NEMT,EFNENT PAO /,r:'.i i�'Y:' R
x E SnNN SPRINT S M y ISTN6
TfLCOIPPC CAdNET .1' L y TRANSFOR,ER
METER
PRWNSEN SPRNi
�'�-'''�' ••' •;'- CONCRsw ETE PM IXlENSNIM
x
EfESTING V 1H BxRBEN w1RE r17' •y x x x
x
PRNP08E0 SPRINT 12 MNE
aIrR1 unH rnaw-c.TE
OVERALL SITE PLAN
15
DocuSign Envelope ID: A2C40DF9-3165-4894-A5EE-49D15C62038A
Cedar - Kalispell H2O SP67XC171 / MT05060
EXHIBIT `B"
Location of Lessee's Improvements
Tower SOW
Replace existing antennas with 3 antennas per sector (LB+MB DoDecca and B41 massive
MIMO product and TBD)
■ Add 3 AHLOA (Diplex B26 radio if existing on site with AHLOA)
Add 3 AHFIG
■ Add 3 AEHC (1341 Massive MIMO product)
■ Add 2 Rooftop HCS2.0
■ Legacy Sprint B26 and B25 radios do not connect to newly added HCS2.0
Ground SOW
Baseband:
Use Airscale for LTE and 5G (ASIB/ABIA for LTE-FDD, ASIB/ABIC for LTE-TDD,
ASIK/ABIL for 5G), FSMF for GSM
Legacy Sprint B26 and B25 radios remain on existing legacy baseband
Entitlement (per site)
Antenna: Neutral (Dimensions/Weight will be different)
RRU: +6
■ Diplexer: +3 (if needed)
■ HCS: +2
16
DocuSign Envelope ID: A2C40DF9-3165-4894-A5EE-49D15C62038A
Cedar - Kalispell H2O
EXHIBIT "C"
Survey
(intentionally omitted)
17
SP67XC171 / MT05060