1a. Approve Lease Agreement With Nextel Communications for Installation of Antennas of the 76th St. Water Tower
CITY Oip-
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690 COULTER DRIVE - P,O: BOX 147- CHANHASSEN, MINNESOTA 55317
(612) 937-1900 - FAX (612) 937-5739,
MEMORANDUM
TO:
FROM:
DATE:
SUBJ:
Approve Lease Agreement with NextelCommunieations for Installation Of
Antennas on the 76th Street Water Tower - PW364A-2
Staff has received a request form Nextel Communications to co-locate acellular antenna facility
on the City's existing W.est 76th Street water tower site. The City codes regarding suchqse
require that the applicantenterinto a lea.seagreement with. theCityfpf.the pse Qf. the public
property as well as comply with all of the standards set forth regardIng the site and building plan.
Attachedis the final draft of the lease agreement between Nextel Communications and the City of
Chanhassen. This lease agreement is similar in format to that which the City previously entered
into with another communication company, which is currently locating cellular antennas on the
76th Street tower. The minor differences with this agreement relate to lease .payment value, lease
duration, and attorney wording changes. Staff is satisfied with this lease agreement and would
recommend its approval.
Attached is a memo from Kate Aanenson, Planning Director, regarding the site plan review and
report on the public hearing held at the Planning Commission's regular meeting on November 5,
1997. The PJanningCommission recommend site plan approval with the following three
conditions:
1. The applicant enter into a lease agreement with the City.
2. The building shall incorporate a pitched roof.
3. Landscaped plan shall be revised to incorporate 4-6 foot Arborvitae.
Once the lease agreement has been approved and fully executed by Nextel and the City, a buildi1tg
permit for the structure can be applied for. Condition Nos. 2 and 3 of the Planning Commission's
approval will be administrated with the building permit.
Don Ashworth"
November 19, 1991
Page 2
It is thereforereco~Pdeqtbaf~'City~~llCit~pprovetheattached lease~greement between
NexteIColl1It1uni~~~~sand~iCii.tf<;l1'the~ati~ofcenular antennasantl the construction
of a buildings~tw'e onth~'7~th'StreetW.~J;'f&lW~site8l1(.itbatthesite plan conditions of
approval as reCommendedbythe~g ~~on be adtIlinistrated with the building permit
process. ' ,,:' ';".
jrns
Attachments: 1.
2.
.l.ea.seagreement~
'M;emoP~DirectordatedNovember 18, 1997 and Planning
C9mmi~si~lirepo~.
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c: Dave Hempc:l,As$i~t@1lt~tyangineet;'"
Jerry Bc~ller,l:Jti1t~Supenntendent
Bill Buell,:B:pell <::qnswtiD.g
Digital Pro~M~ager, Nexte1 COllUllwUcations
Legal Del'~tCOl!~~ M~ager. ~ext.elC<?~unication, Inc.
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Gan' G. Fuch,
CAMPBELL KNUTSON
Prufessi,1l1al Ass,xiati,)!1
Attorneys at Law
Thnll1<ls J. C.lIllphell
Roger N. Knllts,'n
Thnmas M. Sc< let
James R. Walsrun
Elliott B. Knetsch
SlIesan Lea Pace
( 6 t 2) 452 - 5000
Fax (612) 452-5550
Joel J. Jamnik
AnJn:;1 :-'lcl\mell Puehl<:r
i\1:mh<:\\" K. Br,'I..:I'"
).,hn F. Kelil
i\btthe\\' J. Foli
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C<:.lrc;<: T. St<:rh<:l1snn
November 12, 1997
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Mr. Charles Folch
City of Chanhassen
690 Coulter Drive, Box 147
Chanhassen, MN 55317
RE: Nextel Water Tower Lease
Dear Charles:
Enclosed please find a copy of the final lease, complete with exhibits, together
with redlined pages that show the final changes between October 20th and the final draft.
I have reviewed the final draft and recommend that this matter be placed on the next City
Council agenda for review and approval by the City.
Very truly yours,
~~TSON
~odmWn
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BY:--- ~
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Roger N. Knutson
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Suite 317 · Eagandale Office Center · t 380 Corrorate Center CunT · Eagan.?\ iN 5 5 t 2 t
MARKET: Upper Midwest
SITE NAME: Chanhassen
SITE NUMBER: J\,1N-0079
WATER TOWER
ANTENNAE AGREEMENT
TIllS AGREEMENT is made and entered into this _ day of September, 1997, by
and between the CITY OF CHANHASSEN, MINNESOTA, a Minnesota municipal
Corporation (hereinafter refereed to as the "City"), and Nextel West Corp., a Delaware
corporation d/b/a Nextel Communications (hereinafter referred to as
"COM:MUNICATIONS COMPANY").
RECITALS
A. The City is the fee owner of certain land located in Carver County,
Minnesota, commonly known as 500 W. 76th Street, legally described on Exhibit A
attached hereto (hereinafter referred to as the "Property").
B. Located on the Property is a municipal water tower owned, operated and
maintained by the City (hereinafter referred to as the "Water Tower").
C. COMMUNICATIONS COMPANY desires to install, operate and maintain
a single facility, consisting of a total of three whip antennas OR a total of nine panel
antennas including all necessary wiring, cabling and conduits, used for the transmission
and reception of radio communication signals (hereinafter referred to as the "Antennae")
in such frequencies as may be assigned by the Federal Communication Commission and to
provide for the storage of related equipment (hereinafter referred to as the "Equipment")
in accordance with the terms of this Agreement.
D. The parties desire to enter into this Agreement relating to the use of the
Water Tower.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good, valuable and fair consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows;
1. Authorization to Use Water Tower Source. The primary purpose of the
City's ownership of the Property is to: (a) operate and maintain a municipal water tower
so as to provide water service to residents of Chanhassen; and (b) to provide
governmentally related communication systems for the City of Chanhassen. Subject to the
terms of this Agreement, the City authorizes COMMUNICATIONS COMPANY's non-
exclusive use of a certain portion of the Property, which is legally described on Exhibit A
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attached hereto, subject to any and all existing easements and restrictions not inconsistent
with the rights granted hereunder for the purposes described in Paragraph 4 of this
Agreement, including the installation, operation, and maintenance of the Antennae and the
storage of the Equipment. The location on the Water Tower where
COM?v1UNICATIONS COMPANY is authorized to install the Antennae and the location
of the Equipment Shelter on the Property and access and utility easements are depicted on
Exhibit B attached hereto, (collectively, the "Premises").
2. Term. The term of this Agreement shall begin on December 1, 1997 or the
date COM?v1UNICATIONS COMPANY begins construction on the site, whichever first
occurs ("Commencement Date"), and end at midnight on November 30,2002 ("Initial
Term"), COMMUNICATIONS COMPANY shall have the right to extend the Initial Term
of this Agreement for two (2) additional five (5) year terms ("Five Year Renewal Term")
and thereafter, one additional two (2) year term ("Two Year Renewal Term") on the same
terms and conditions as set forth herein. This Agreement shall automatically be extended
for each successive Renewal Term unless COMMUNICATIONS COMPANY gives City
written notice of its intention not to extend at least sixty (60) days prior to the expiration
of the then-existing term.
3. Rent and Compensation.
A. Initial and Renewal Term. Rent during the Initial Term shall be
$1,200.00 per calendar month payable in advance on or before the 1 st day of each month.
Rent during the first Five Year Renewal Term shall be $1,380.00 per month, during the
second Five Year Renewal Term shall be $1,587.00 per month and during the Two Year
Renewal Term shall be $1,825.00 per month.
B. Supplementary Equipment. On the Commencement Date of the
Lease, COM?v1UNICATIONS COMPANY agrees to provide the City the following
supplementary equipment, all of which are at the cost and expense of
COM?v1UNICATIONS COMPANY:
a) Three (3) Ultra portable telephones.
b) Three (3) additional batteries.
c) Three (3)12 volt adapters.
At the commencement date of each Renewal Term, COM?v1UNICATIONS
COMPANY shall replace, at COMMUNICATIONS COMPANY's sole cost, the above-
described cellular equipment with three (3) similar and cost effective telephones of
comparable value. The specific model and type of the supplementary equipment shall be
determined by COMMUNICATIONS COMPANY and shall be considered good quality
equipment by industry standards. Such portable telephones shall become the property of
City, including manufacturer's warranties that apply. City shall be responsible for the cost
of maintenance, recurring service fees, airtime and any other use fees.
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4. Use.
C. Equipment Shelter. Exhibit B depicts the size, location and
configuration ofthe Equipment Shelter on the Property. The ground space occupied by
the Equipment Shelter shall be known as the "Leased Premises" and is depicted on Exhibit
B. Exhibit C further describes the Equipment Shelter. COM1vfUNICATIONS
COMP ANY's use of the Equipment Shelter shall be exclusive. The exterior finish of the
Equipment Shelter must be brick or a material which simulates the appearance of a brick
fascia. The roof must have a pitched roof. The construction plan for the Equipment
Shelter shall be submitted in accordance with the City's ordinances and rules relating to the
issuance ofa building permit, and subject to the review and approval of the City pursuant
thereto prior to commencement of construction of the Equipment Shelter. Such approval
shall not be unreasonably withheld or delayed if the materials for and appearance of the
Equipment Shelter are substantially identical to that depicted and/or described in Exhibit C
hereto. COM1vfUNICATIONS COMPANY shall provide for and be responsible for all
utility services used by COM1vfUNICATIONS COMPANY and the maintenance of the
Equipment Shelter. COM1vfUNICATIONS COMPANY shall be entitled to the exclusive
use of the Antennae locations, Equipment Shelter and Leased Premises during the Initial
Term and during Renewal Terms.
A. COM1vfUNICATIONS COMPANY may use the Property and the
Water Tower solely for the purpose of constructing, installing, removing, replacing,
maintaining, and operating the Antennae, subject to such modifications and alterations as
may result from changes or improvements in technology. Prior to COM:MUNICATIONS
COMPANY installing, subsequently modifying, or removing the Antennae and the
Equipment, it shall provide written notice to the City, along with copies of the plans and
specifications of the work. The City shall have the right to approve the manner of
installation and the location on the Water Tower where COM1vfUNICATIONS
COMP ANY installs the Antennae, which approval shall not be unreasonably withheld or
delayed. COMMUNICATIONS COMPANY shall not install any subsequent antennae
(beyond the original three whip antennas OR nine panel antennas including all necessary
wiring, cabling and conduits) without negotiating a written addendum to this Agreement,
which addendum shall include an increase in the annual rental fee.
B. Except for in use wiring, cabling and conduits depicted on Exhibit
B, COMMUNICATIONS COMPANY shall store all Equipment related to the Antennae
in the Equipment Shelter.
C. City will not in any way be responsible for the Antennae, the related
Equipment, the Equipment Shelter, or any personal property actually placed on the
Property or in the Equipment Shelter or installed on the Water Tower by
COM:MUNICATIONS COMPANY.
D. The Antennae and the related Equipment shall remain the property
of COMMUNICATIONS COMPANY, subject to the terms of Paragraphs 7 and 8.
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E. COMMUNICATIONS COMPANY, at all times during this
Agreement, shall have access to the ground portion of the Property in order to install,
operate, and maintain Antennae and Equipment. COM:MUNICATIONS COMPANY
shall have access to the Water Tower only with the approval of the City.
COMMUNICATIONS COMPANY shall request access to the Water Tower at least
twenty-four (24) hours in advance except in emergency, and City's approval thereof shall
not be unreasonably withheld, delayed, or conditioned. In the event that it is necessary for
COMMUNICATIONS COMPANY to have access to the Water Tower at some time
other than the normal working hours of the City, the City may charge
COMMUNICATIONS COMPANY for whatever expense, including employee wages,
that the City may incur in providing such access to COM:MUNICATIONS COMPANY.
The City will be entitled to reimbursement from COM:MUNICATIONS COMPANY if
City incurs any costs associated with providing COM:MUNICATIONS COMPANY
access to Water Tower, Property or Equipment Shelter except in those cases where cost is
incidental to City obtaining access for its own purposes unrelated to
COMMUNICATIONS COMPANY's use of Antennae, Water Tower and Equipment
Shelter. Notwithstanding the foregoing, "access" does not require or impose upon the
City an affirmative duty to snowplow in order to provide "access" to the Property or to
the Water Tower. The City shall not be responsible for damages or otherwise for
interruption in COMMUNICATIONS COMPANY services where the interruption is due
to an emergency or performance of maintenance and repairs on the Water Tower as long
as the procedures and provisions of Section 5.C. are fulfilled.
F. COMMUNICATIONS COMPANY shall take all steps necessary
to prevent any mechanics' or materialmen's liens from being placed on the Property as a
result of COMMUNICATIONS COMPANY's use of the Water Tower, Property and
Equipment Shelter, and specifically indemnifies the City from such liens.
G. The color of the Antennae and any Equipment placed on the Water
Tower shall match the color of the Water Tower.
H. COMMUNICATIONS COMPANY shall pay all personal and real
property taxes assessed against the Antennae, related Equipment and/or Equipment
Shelter. If any such improvements constructed on the Property should cause part of the
Property to be taxed for real estate purposes, COM:MUNICATIONS COMPANY agrees
to timely pay its pro rata share, of such taxes. COM:MUNICATIONS COMPANY pro
rata share of such taxes shall be calculated by a percentage, such percentage shall be based
upon COMMUNICATIONS COMPANY proportionate share of the total rent paid to
City by all tenants on the Property that are also required to pay such taxes.
1. The City represents and warrants to COMMUNICATIONS
COMP ANY that COMMUNICATIONS COMPANY shall enjoy ingress, egress, and
access from an open and improved public road to the Property adequate to service the
Property and the Equipment Shelter at all times during this Agreement and at no
additional charge to COMMUNICATIONS COMPANY. Any access easements granted
to COMMUNICATIONS COMPANY shall terminate upon termination of this Water
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5. Maintenance of Antennae: Modification.
Tower Antennae Agreement and COMMUNICATIONS COMPANY agrees to execute
any and all documents necessary to remove the easement from the Property.
1. Within thirty (30) days after the completed installation,
COMMUNICATIONS COMPANY shall provide the City with record drawings of the
Antennae, Equipment, and improvements installed on the Property, which shows the
actual location of all Antennae, Equipment, and Equipment Shelter. Said drawings shall
be accompanied by a complete and detailed inventory of all Equipment, personal property,
and Antennae act,ually placed on the Property.
A. COMMUNICATIONS COMPANY shall maintain the Antennae,
Equipment, and Equipment Shelter in good condition at all times, at its sole cost and
expense. COMMUNICATIONS COMPANY shall conduct all repair, replacement and
maintenance operations in accordance with applicable OSHA regulations or such other
occupational and safety regulations pertaining to such operations. Every five (5) years
from the commencement date of this Agreement, COMMUNICATIONS COMPANY
shall have the Antennae and Water Tower inspected by a Registered Civil Engineer and
provide the City with a copy of the inspection report. If COMMUNICATIONS
COMP ANY fails to do so, and such failure creates a risk of damage or injury to persons
or property (as determined in the reasonable discretion of the City), the City may take
such steps as it determines to be necessary to protect persons or property; including
removal of the Antennae and the Equipment. COMMUNICATIONS COMPANY shall
reimburse the City for any costs incurred in connection with assuring compliance with the
provisions of this paragraph; including any costs of restoring the Water Tower and the
Property to their original condition. If COMMUNICATIONS COMPANY fails to pay
the City for such costs within thirty (30) days of a demand by the City for payment, the
City at its election may terminate this Agreement and retain all rent paid. Notwithstanding
anything contained in this Paragraph 5 to the contrary, the City shall not be entitled
hereunder to take any action or to incur any costs for which COMMUNICATIONS
COMPANY would be liable without first giving COMMUNICATIONS COMPANY
written notice of the breach of its obligations under this Paragraph 5 and
COMMUNICATIONS COMPANY fails to cure such breach within thirty (30) days of its
receipt of such notice; provided, however, that such cure period shall not be required in
the event that the breach by COMMUNICATIONS COMPANY creates an immediate
threat of damage or physical injury to persons or property (as determined in the reasonable
discretion of the City). These remedies are nonexclusive, and the City expressly reserves
its rights to pursue any available legal or equitable remedies.
B. Any additional expense of repainting, repairing, or maintaining the
Property or the Water Tower reasonably incurred by the City as a direct consequence of
the presence of the Antennae and/or the Equipment being located thereon shall be paid
promptly by COMMUNICATIONS COMPANY to the City upon receipt from the City by
COMMUNICATIONS COMPANY of the City's written notice of such additional cost,
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which notice shall state the reason(s) for the incurring of such costs and shall include a
reasonable itemization of such costs.
C. COMMUNICATIONS COMPANY shall remove its Antennae
facilities at COMMUNICATIONS COMPANY'S cost, upon reasonable notice to allow
maintenance, repair, and repainting, deemed appropriate in the reasonable discretion of the
City. There may be scheduled interruptions in use of the Antennae facilities. Except in
the case of an emergency, City shall give COMMUNICATIONS COMPANY thirty (30)
days' written notice of repair, repainting, or restoration. In case of an emergency which
means there is a threat to the health or safety of the public, or damage to the Property,
City may remove COMMUNICATIONS COMPANY's Antennae facilities, but shall
notify COMMUNICATIONS COMPANY by telephone as soon as reasonably possible.
An "emergency" shall be deemed to exist only in those situations which constitute an
immediate threat to the health or safety of the public or immediate danger to the Property.
In the event the use of COMMUNICATIONS COMPANY's Antennae facilities is
interrupted, COMMUNICATIONS COMPANY shall have the right to maintain mobile
cellular sites on wheels on the Property or, after approval by City, on any land owned or
controlled by City in the immediate area of the Property.
D. No material alteration or addition to the Antennae, the Equipment,
or the Equipment Shelter shall be made by COMMUNICATIONS COMPANY until
COMMUNICATIONS CONfP ANY has submitted to the City a detailed proposal for the
same, and the City has approved such proposal. The City may require that either or both
of the studies required under Subparagraph lIE hereofbe conducted, to the extent that
the City reasonably deems the same necessary for the proper evaluation of such proposed
alteration or addition, which study or studies shall be performed at the sole expense of
COMMUNICATIONS CONfP ANY. Such approval by the City shall not be unreasonably
withheld, delayed, or conditioned.
6. Utilities. COMMUNICATIONS CONfP ANY shall separately meter and
pay all electric and other utility services that are associated with the use of the Property,
the Water Tower, and the Equipment Shelter. The City agrees to cooperate with
COMMUNICATIONS CONfP ANY in its efforts to connect the Antennae and Equipment
to existing utility service at COMMUNICATIONS CONfP ANY's expense. The City
makes no representation or warranty regarding the availability of electric or other utility
service to the Water Tower or the Equipment Shelter. COMMUNICATIONS
CONfP ANY shall have the right to install utilities, at COMMUNICATIONS
CONfP ANY's expense, and to improve the present utilities on the Property including, but
not limited to the use of a temporary mobile emergency power generator adjacent to the
Equipment Shelter for use for a period up to ten (10) days, continuously. When
reasonable and due to circumstances beyond the control of COMMUNICATIONS
CONfP ANY, the City will consider a time extension. The City shall not be liable, and
COMMUNICATIONS CONfP ANY waives any and all claims against the City, for any
interruption of electrical or other utility services to the Property, Antennae or Equipment
Shelter.
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B. Waiver of City's Lien.
7. Removal of Antennae and Equipment.
A. COMMUNICATIONS COMPANY shall remove the Antennae and
all personal property and trade fixtures at its own cost and expense upon the expiration of
the term of this Agreement, any earlier termination of this Agreement as provided herein,
or any Renewal Term. COMMUNICATIONS COMPANY shall, at its sole cost and
expense, return the Water Tower and the Property to the condition it was in prior to the
commencement of this Agreement, normal wear and tear excepted. In the event
COMMUNICATIONS COMPANY fails to so remove any component of the Antennae,
the Equipment, or both, or to return the Water Tower and the Property to their original
condition, within thirty (30) days of the termination of this Agreement, then the City shall
have the right to remove the Antennae or Equipment at COMMUNICATIONS
COMPANY's sole cost and expense. If COMMUNICATIONS COMPANY fails to
reclaim the Antennae or Equipment with thirty (30) days' notice from the date of removal
by the City, said Antennae and Equipment shall without further notice be deemed
abandoned. No Antennae or Equipment will be released by the City to
COMMUNICATIONS COMPANY until COMMUNICATIONS COMPANY has
reimbursed the City for all expenses related to removing the Antennae and the Equipment
and returning the Property and the Water Tower to their original condition.
(a) City waives any lien rights it may have concerning the
COMMUNICATIONS COMPANY Facilities which are deemed
COMMUNICATIONS COMPANY's personal property and not fixtures, and
COMMUNICATIONS COMPANY has the right to remove the same at any time
without City's consent.
(b) City acknowledges that COMMUNICATIONS COMPANY has
entered into a financing arrangement including promissory notes and financial and
security agreements for the financing of the COMMUNICATIONS COMPANY
Facilities (the "Collateral") with a third party financing entity (and may in the
future enter into additional financing arrangements with other financing entities).
In connection therewith, City (i) consents to the installation of the Collateral; (ii)
disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that
the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment,
or distress for any Rent due or to become due and that such Collateral may be
removed at any time without recourse to legal proceedings.
8. Termination.
A. Except as otherwise provided herein, this Agreement may be
terminated by either party upon sixty (60) days' written notice to the other party, only as
follows:
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(a) by either party upon default of any covenant or term hereof
by the other party, which default is not cured within sixty (60) days of
receipt of written notice of default to the other party (without, however,
limiting any other rights of the parties pursuant to any other provisions
hereof);
(b) by COMMUNICATIONS COMPANY for cause if it is
unable to obtain or maintain any license, permit, or other governmental
approval necessary for the construction and/or operation or use of the
Property and the Water Tower as a transmission facility and Equipment
Shelter;
(c) by COMMUNICATIONS COMPANY for cause if the
Property is or becomes unacceptable for technological reasons under
COMMUNICATIONS COMPANY's design or engineering specifications
for its Antennae or related Equipment;
(d) by the City If COMMUNICATIONS COMPANY fails to
tender the monthly rent payment within fifteen (15) business days of
written notice from City that COMMUNICATIONS COMPANY is in
default payment of rent;
(e) by the City if it determines, after consultation with a
licensed structural engineer that the Water Tower is structurally unsound
for use as a water tower, for any reason including but not limited to
considerations related to the age of the structure, damage to or destruction
of all or part of the Water Tower or the Property from any source, or
factors relating to the condition of the Property;
(f) by the City, upon six months notice, if its City Council
decides, for any reason, to discontinue use of the Water Tower for all
purposes, in which event COMMUNICATIONS COMPANY shall not be
entitled to compensation in any form for any reason as a result of the City's
exercising its rights under this subparagraph;
(g) by COMMUNICATIONS COMPANY if City causes
electrical utility services to be interrupted for a period of more than thirty
(30) days; or
(h) If the City determines that a potential user with a higher
priority as identified under Paragraph 10 below cannot find another
adequate location or the Antennae and Equipment unreasonably interfere
with another user with a higher priority, regardless of whether or not such
an interference was predicted in the initial interference study that was a part
of the application process.
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B. If City terminates this Agreement other than as of right as provided
in this Agreement, or City causes interruption of the business ofCOM:MUNICATIONS
COMPANY or for any other City breach of this Agreement, City's liability for damages to
COM:MUNICATIONS COMPANY shall be limited to the actual and direct costs of
Equipment removal, relocation or repair and shall specifically exclude any recovery for
value of the business of COMMUNICATIONS COMPANY as a going concern, future
expectation of profits, loss of business or profit or related damages to
COM:MUNICATIONS COMPANY as a going concern, future expectation of profits or
loss of business or profit.
C. Notwithstanding anything contained in this Paragraph 8 to the
contrary, in the event that, at any time during the Initial Term, the City desires to
terminate this Agreement pursuant to Clause (e), Clause (t), or Clause (h) of
Subparagraph 8A above, COMMUNICATIONS COMPANY shall have the right, at its
option, to convert this Agreement to a lease of a portion of the Property for the
installation and operation of an antenna tower which will permit COMMUNICATIONS
COMP ANY to continue the operation of the facility contemplated by this Agreement,
provided that such tower complies with all other requirements of this Agreement,
applicable City ordinances (including the City building code), and provided further that
COM:MUNICATIONS COMPANY notifies the City in writing of the exercise of this right
within thirty (30) days after COMMUNICATIONS COMPANY receives the notice of the
City required by said Subparagraph 8A.
D. If COMMUNICATIONS COMPANY terminates this Agreement
other than of right as provided in this Agreement, COMMUNICATIONS COMPANY
shall pay to the City as liquidated damages for early termination, 150% of the annual rent
for the year, unless COMMUNICATIONS COMPANY terminates during the last year of
any term under Paragraph 2, and COMMUNICATIONS COMPANY is not in default in
payment of rent.
9. Interference.
A. Upon paying the rent as required herein, COM:MUNICATIONS
COMPANY shall have the right to the use of the Water Tower and Property as permitted
in this Agreement. City in no way guarantees to COMMUNICATIONS COMPANY
noninterference with COMMUNICATIONS COMPANY's transmission operations,
provided, however, that in the event any other party except a high priority user requests
permission to place any type of additional antennae or transmission facility on the
Property, the procedures of Paragraph lID shall govern to determine whether such
antennae or transmission facility will interfere with COMMUNICATIONS COMPANY'S
transmission operations.
B. COMMUNICATIONS COMPANY acknowledges that City may
permit additional buildings to be constructed on the Property described in Exhibit A. At
such time that this may occur, COMMUNICATIONS COMPANY will permit said
buildings to be placed immediately adjacent to COMMUNICATIONS COMPANY
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building and will allow attachments to its building so as to give the appearance that all
buildings are a connected facility, provided that: (i) such attachments are made at no cost
to COMMUNICATIONS COMPANY, (ii) such attachments do not compromise the
structural integrity or utility of the Equipment Shelter or the operation of the Equipment
therein, and (iii) the access to the Equipment Shelter by COMMUNICATIONS
COMPANY is not altered or materially adversely affected.
10. Interference Caused By Antennae. COMMUNICATIONS COMPANY's
Equipment shall be installed and operated in a manner which does not cause interference
or otherwise impair the quality of the communication services being rendered by the
following higher priority users: (1) City and (2) public safety agencies including law
enforcement, fire, and ambulance services, that are not part of the City.
11. Interference with Antennae Operations.
A. Temporary Interruptions of Service. If the City determines, in its
reasonable discretion, that continued operation of the Antennae would cause or contribute
to an immediate material threat to public health and/or safety (except for any issues
associated with human exposure to radio frequency emissions, which is regulated by the
federal government), the City may order COMMUNICATIONS COMPANY to
discontinue its operation. COMMUNICATIONS COMPANY shall immediately comply
with such an order. Service shall be discontinued only for the period that the immediate
threat exists. If the City does not give prior notice to COMMUNICATIONS
COMPANY, the City shall notify COMMUNICATIONS COMPANY as soon as possible
after its action and give its reason for taking the action. The City shall not be liable to
COMMUNICATIONS COMPANY or any other party for any interruption in
COMMUNICATIONS COMPANY's service or interference with COM:MUNICATIONS
COMP ANY's operation of its Antennae, Equipment or Equipment Shelter, except as may
be caused by the negligence or willful misconduct of the City, its employees or agents. In
any event, the City's liability shall not extend beyond the obligation to repair the cause of
the interruption or interference. If the discontinuance extends for a period greater than
three (3) business days, COMMUNICATIONS COMPANY's sole remedy shall be to
terminate this Agreement within its sole discretion.
B. With Structure. COMMUNICATIONS COMPANY shall not
interfere with City's use of the Water Tower or Property and agrees to cease all such
actions which unreasonably and materially interfere with City's use thereof no later than
three (3) business days after receipt of written notice of the interference from City. In the
event that COMMUNICATIONS COMPANY's cessation of action is material to
COMMUNICATIONS COMPANY's use of the Water Tower and Property and such
cessation frustrates COMMUNICATIONS COMPANY's use of the Water Tower and
Property, within COMMUNICATIONS COMPANY's sole discretion,
COMMUNICATIONS COMPANY shall have the immediate right to terminate this
Agreement.
54900.02
r09/08/97 (RNK)
10
D. Interference Study - New Occupants. Upon written notice by City
that it has a bona fide request from any other party to lease an area including or in close
proximity to the Water Tower and Property, COMMUNICATIONS COMPANY agrees
to provide City, within twenty (20) days, the radio frequencies currently in operation or to
be operated in the future of each transmitter and receiver installed and operational on the
Water Tower and Property at the time of such request. City may then have an independent
registered professional engineer of City's choosing perform the necessary interference
studies to determine if the new applicant's frequencies will cause harmful radio
interference to COMMUNICATIONS COMPANY. City shall require the new applicant
to pay for such interference studies. Except for those parties and entities identified in
Paragraph 10, City agrees that it will not grant a future lease in the Water Tower and
Property to any party if such party's use is reasonably anticipated to interfere with
COMMUNICATIONS COMPANY's operation of its Antennae or Equipment.
C. With Higher Priority Users. If COMMUNICATIONS
COMP ANY's Equipment causes impermissible interference with the parties identified in
Paragraph 10 above or with pre-existing tenants, COMMUNICATIONS COMPANY
shall take all measures necessary to correct and eliminate the interference. If the
interference cannot be eliminated within 48 hours after receiving City's written notice of
the interference, COMMUNICATIONS COMPANY shall immediately cease operating its
Antennae and shall not reactivate operation, except intermittent operation for the purpose
of testing, until the interference has been eliminated. If the interference cannot be
eliminated within thirty (30) days after COMMUNICATIONS COMPANY received
City's written notice, City may at its option terminate this Agreement immediately.
E. Initial Study. Before obtaining a building permit,
COMMUNICATIONS COMPANY must pay for the reasonable cost of (i) a radio
frequency interference study carried out by an independent and qualified professional
selected by the City showing that the COMMUNICATIONS COMPANY antennae use
will not interfere with any existing communication facilities; and (ii) an engineering study
showing that the Water Tower is able to support the Antennae and Equipment, as referred
to in Exhibit B hereto, without prejudice to the City's use of the Water Tower. If the
study finds that there is a potential for interference that cannot be easily remedied or for
prejudice to the Water Tower, the City may terminate this Lease Agreement immediately
and refund the initial rent to COMMUNICATIONS COMPANY. The City shall order
such studies promptly upon its receipt of the application of COMMUNICATIONS
COMP ANY for a building permit for the Equipment Shelter, and shall cause the same to
be completed as soon as reasonably possible. If the City decides to exercise its
termination right under this Subparagraph lIE, then the City shall give
COMMUNICATIONS COMPANY written notice of such termination within ten (10)
days after receipt by the City of the last of such studies, which notice shall specify the
condition disclosed by either such study upon which the City is basing the exercise of such
right and shall include the refund of such prepaid rent.
12. Future Development. COMMUNICATIONS COMPANY understands
and acknowledges that the City may utilize the Property for public use at some future
11
54900.02
r09/0B/9? (RNK)
date, and that the design and manner of such use shall be in the sole discretion of the City.
In the event that City undertakes such use, then the City and COMMUNICATIONS
COMPANY agree to cooperate with one another as necessary to facilitate both parties use
of the Property.
13. Indemnity.
A. General. COMMUNICATIONS COMPANY agrees to defend,
indemnify and hold harmless City and its elected officials, officers, employees, agents, and
representatives, from and against any and all claims, costs, losses, expenses, demands,
actions or causes of action, including reasonable attorneys' fees and other costs and
expenses of litigation, which may be asserted against or incurred by the City or for which
the City may be liable in the performance of this Agreement, except those which arise
solely from the negligence, willful misconduct, or other fault of the City.
COMMUNICATIONS COMPANY shall defend all claims arising out of the installation,
operation, use, maintenance, repair, removal, or presence of COMMUNICATION
COMPANY's Antennae, Equipment and related facilities on the Property.
B. Hazardous Materials. City represents that City has no knowledge
of any substance, chemical, or waste on the Property that is identified as Hazardous
Materials, toxic or dangerous in any applicable federal, state or local law or regulation.
Without limiting the scope of Subparagraph 13A above, COMMUNICATIONS
COMPANY will be solely responsible for and will defend, indemnify, and hold the City, its
agents, and employees harmless from and against any and all claims, costs, and liabilities,
including attorney's fees and costs, arising out of or in connection with the cleanup or
restoration of the Water Tower and Property associated with COMMUNICATIONS
COMPANY's use of Hazardous Materials. For purposes of this Agreement, "Hazardous
Materials" shall be interpreted broadly and specifically includes, without limitation,
asbestos, fuel, batteries or any hazardous substance, waste, or materials as defined in any
federal, state, or local environmental or safety law or regulations including, but not limited
to, CERCLA.
C. COMMUNICATIONS COMPANY's Warranty.
COMMUNICATIONS COMPANY represents and warrants that its use of the Water
Tower, Property and Equipment Shelter will not generate and COMMUNICATIONS
COMPANY will not store or dispose of on the Property, nor transport to or over the
Water Tower or Property, any Hazardous Materials in violation of any law or regulation,
COMMUNICATIONS COMPANY will promptly inform the City in writing if
COMMUNICATIONS COMPANY becomes aware of the existence of Hazardous
Materials on the Property in violation of any law or regulation. The obligations of this
Paragraph 13 shall survive the expiration or other termination of this Agreement.
14. Damage to the Water Tower or to the Property. COMMUNICATIONS
COMPANY's installation, operation, maintenance, modification, and removal of the
Antennae and Equipment shall not damage or interfere in any way with the Property or the
Water Tower operations or related repair and maintenance activities. If the activities of
54900.02
r09/08/97 (RNK)
12
COMMUNICATIONS COMPANY, or those of its agents, representative, employees,
contractors, or subcontractors, cause such damage or interference, COMMUNICATIONS
COMPANY will cure damage or interference within thirty (30) days after receipt of
written notice. If COMMDNICATIONS COMPANY fails to cure such damage or
interference, the City without further notice may take such steps as it deems necessary to
repair the damage or remedy the interference, at the sole cost and expense of
COMMUNICATIONS COMPANY.
15. Casualty. If any portion of the Property, Water Tower or Antennae is
damaged by any casualty and such damage materially and adversely affects
COMMUNICATIONS COMPANY's use of the Water Tower or Property,
COMMUNICATIONS COMPANY may give thirty (30) days' notice of its intention to
terminate this Agreement. Such notice must be given within fifteen (15) days of notice of
the casualty
16. Ouiet Enjoyment. COMMUNICATIONS COMPANY, upon paying the
rent, shall peaceably and quietly have, hold and enjoy the Property and Water Tower. If,
as of the date of execution of this Agreement or hereafter, there is any mortgage, or other
encumbrance affecting the City's Property or Water Tower, then City agrees to obtain
from the holder of such encumbrance an Agreement that COM:MUNICATIONS
COMPANY shall not be disturbed in its possession, use and enjoyment of the Property
and Water Tower. The City shall not cause or permit any use of the Property which
interferes with or impairs the quality of the communication services being rendered by
COMMUNICATIONS COMPANY from the Property.
17. Insurance.
A. As long as this Agreement is in effect, COM:MUNICATIONS
COMP ANY shall maintain a general liability insurance policy that provides coverage for
the Property and the Water Tower from any damage to property or injuries to persons.
Said insurance policy shall provide coverage on an occurrence basis in an amount no less
than Two Million Dollars ($2,000,000), and shall include contractual liability coverage to
. provide coverage for the indemnification provision in Paragraph 13 of this Agreement.
Said insurance policy shall list the City as an additional insured party. Said policy shall
contain a clause that provides that the insurer will not cancel, non-renew, or materially
change the policy without first giving the City thirty (30) days prior written notice.
COM:MUNICATIONS COMPANY shall provide the City with a Certificate ofInsurance
for said policy which specifically details the conditions of the paragraph.
COMMUNICATIONS COMPANY shall also maintain fire and extended coverage
insurance insuring COM:MUNICATIONS COMPANY's personal property for its full
insurable value (subject to reasonable deductibles).
B. As long as this Agreement is in effect, the City shall maintain bodily
injury and property damage insurance for the Property and the Water Tower with a
combined single limit of at least two Hundred Thousand Million Dollars ($200,000) per
occurrence. Such insurance shall insure, on an occurrence basis, against liability of
13
54900.02
r09/0a/97 (RNK)
... U.1.' "''''.., U I;'u
~ue~~ ~onsulLlng
Lessor, its employees and agents, arising out of or in connection with Lessor's use,
occupancy and maintenance of the Property.
C. Notwithstanding anything in this Agreement to the contrary, each
party releases the other party from aU liability, whether for negligence or otherwise, in
connection with a loss covered by any policies which the releasing party carries with
respect to the Property, including the Antennae and Equipment Shelter, but only to the
extent that such loss is collected under such insurance poIicy(s). Any policy required to be
obtained pursuant to this Paragraph 17 shall contain a Waiver of Subrogation in favor of
the other party to this Agreement.
D. COMMUNICATIONS COMPANY shall provide City with proof
of Workers' Compensation insurance covering all of COMMUNICATIONS
COMPANY's employees, contractors and subcontractors who access the Property.
18. Condition of Property. CO~CATIONS COMPANY acknowledges
that the City makes. no representations or warranties regarding the suitability of the
Property or the Water Tower for CO!v1MUNICATIONS COMPANY's intended use
under this Agreement. City represents that the Water Tower and Property are in
compliance with all building and other life/safety codes.
19. Condemnation. In the event the whole of the Property is taken by eminent
domain, this Agreement shall terminate as of the date title to the Property vests in the
condemning authority. In the event a portion of the Property is taken by eminent domain,
either party shall have the right to terminate this Agreement as of said date of title transfer,
by giving thirty (30) days' written notice to the other party. In the event of any taking
under the power of.eminent domain, COMMUNICATIONS COMPANY shall not be
entitled to any portion of the reward paid for the taking and the City shall receive full
amount of such award. COMl\.1UNICATIONS COMPANY hereby expressly waives any
right or claim to any portion thereof. Although all damages, whether awarded as
compensation for diminution in value of the leasehold or to the fee of the Property, shall
belong to City, COMMUNICATIONS COMPANY shall have the right to claim and
recover from the condemning authority, but not from City, such compensation as may be
separately awarded or recoverable by COMMUNICATIONS COMPANY on account of
any and all damage to COMMUNICATIONS COMP ANYs business and any costs or
expenses incurred by City in moving/removing its Antennae, Equipment or personal
property. Sale of all or part of Water Tower or Property to a purchaser with power of
eminent domain in the face of the exercise of the private, shall be treated as a taking by
condemnation.
20. Waiver. Except as otherwise provided in this Agreement, the rights and
remedies of the parties to this Agreement, whether provided by law or by this Agreement
shall be cumulative" and the exercise by either party of anyone or more of such remedies
shall not preclude the exercise by it, at the same or different times, of any such remedies
for the same default or breach of any of its remedies for any other default or breach by the
other party. No waiver made by either such party with respect to the perfonnance, or
14
141002
manner of time thereof, or any obligation under this Agreement shall be considered a
waiver of any rights of the party making the waiver with respect to the particular
obligation of the other party or condition to its own obligation beyond those expressly
waived in writing and to the extent thereof, or a waiver in any respect in regard to any
other rights of the party making the waiver of any other obligation of the other party.
Delay by a party hereto in instituting or prosecuting any cause of action or claim
hereunder shall not be deemed a waiver of any rights hereunder.
21. Miscellaneous.
A. Whole Agreement: Modification: This Agreement contains all of
the terms and conditions relating to the rights granted herein, and replaces any oral
agreements or other negotiations between the parties relating to the Agreement. No
modifications to this Agreement shall be valid unless and until they have been placed in
writing and signed by both parties hereto.
B. Severability: If any term of this Agreement is found to be
unenforceable or invalid by a court of competent jurisdiction, such unenforceability or
invalidity shall not affect the remaining terms of this Agreement, which shall continue in
full force and effect.
C. Authority: Each party represents and warrants that it has full
authority to enter into and to sign this Agreement.
D. Counterparts: The parties may sign this Agreement in counterparts.
E. Binding Effect: The terms, conditions, representation and
covenants of this Agreement shall extend to and bind the heirs, personal representatives,
successors and assigns of the City and COMMUNICATIONS COMPANY.
F. Assignment and Delegation:
(a) By COMMUNICATIONS COMPANY:
COMMUNICATIONS COMPANY may not assign, or otherwise transfer
all or any part of its interest in this Agreement or in the Premises without
the prior written consent of City~ provided, however, that
COMMUNICATIONS COMPANY may assign its interest to its parent
company, any subsidiary or affiliate of it or its parent company or to any
successor-in-interest or entity acquiring fifty-one percent (51 %) or more of
its stock or assets, subject to any financing entity's interest, if any, in this
Agreement as set forth in Paragraph 7 above. City may assign this
Agreement upon written notice to COMMUNICATIONS COMPANY,
subject to the assignee assuming all of City's obligations herein, including
but not limited to, those set forth in Paragraph 7 above. Notwithstanding
anything to the contrary contained in this Agreement,
COMMUNICATIONS COMPANY may assign, mortgage, pledge,
15
54900.02
r09/08/97 (RNK)
hypothecate or otherwise transfer without consent its interest in this
Agreement to any financing entity, or agent on behalf of any financing
entity to whom COMMUNICATIONS COMPANY (i) has obligations for
borrowed money or in respect of guaranties thereof: (ii) has obligations
evidenced by bonds, debentures, notes or similar instruments, or (ill) has
obligations under or with respect to letters of credit, bankers acceptances
and similar facilities or in respect of guaranties thereof.
(b) By the City: The City may freely assign its rights and
delegate its duties under this Agreement to a joint powers organization of
which it is now a member, or to any such organization to which it may
become a member during the term of this Agreement.
G. Notices: Notices shall be in writing and personally delivered, sent
by United States mail, postage prepaid, certified or registered with return receipt
requested or by any nationally recognized overnight courier service to the following:
If to City:
City of Chanhassen
690 Coulter Drive, Box: 147
Chanhassen, MN 55317
ATTN: Don Ashworth, City Manager
If to COMMUNICATIONS COMPANY:
Nextel Communications
9401 James Avenue South, Suite 180
Bloomington, MN 55431
Attn: Digital Property Manager
With a copy to:
Nextel Communications Inc.
1505 Farm Credit Drive
McLean, \'A 22102
Legal Dept., Contracts Manager
Attn:
H. Estoppel Certificate: Each party agrees to furnish to the other,
within ten (10) days after request, such truthful estoppel. information as the other may
reasonably request.
1. Governing Law: This Agreement shall be construed in accordance
with the laws of the State of Minnesota.
J. Broker. If either party is represented by a real estate broker in this
transaction, that party shall be fully responsible for any fee due such broker, and shall hold
the other party harmless from. any claims for commission by such broker.
54900.02
r09/0B/97 (RNK)
16
NOT FOR EXECUTION
K. Memorandum of Lease . City agrees to cooperate with
COMMUNICATIONS COMPANY in executing any documents (including a
Memorandum of Lease in the form annexed hereto as Exhibit D ) necessary to protect
COMMUNICATIONS COMPANY's rights hereunder or COMMUNICATIONS
COMP ANY's use of the Water Tower, Property or Equipment Shelter.
L. Headings. Headings at the beginning of paragraphs herein are for
convenience of reference, shall not be considered part of this Agreement and shall not
influence its construction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CITY OF CHANHASSEN
BY:
NOT'FOR EXEamON
Nancy K. Mancino, Mayor
NOT FOR EXECUTION
AND
Don Ashworth, City Manager
Federal ill #: 410885331
NEXTEL WEST CORP, .d/b/a
Nextel Communications
BY:
John C. Shelton,
President Midwest Area
STATE OF MINNESOTA )
) ss.
COUNTY OF CARVER )
The foregoing instrument was acknowledged before me this day
. 1997, by Nancy K. Mancino and Don Ashworth, respectively the Mayor
and City Manager of the City of Chanhassen, Minnesota, a municipal corporation, on
behalf of the City, and pursuant to authority granted by its City Council.
NOT FOR EXECUnON
Notary Public
17
54900.02
r09/08/97 (RNK)
STATE OF lllinois )
COUNTY OF Cook )
) ss.
The foregoing instrument was acknowledged before me this day of
. 1997, John C Shelton ofNextel West Corp., a Delaware
corporation, on behalf of the corporation.
NOT FOR EXECUTION
Notary Public
DRAFTED BY:
CAMPBELL KNUTSON
Professional Association
13 80 Corporate Center Curve
317 Eagandale Office Center
Eagan, MN 55121
Telephone: (612) 452-5000
RNK:sm
54900.02
r09/0e/97 (RNK)
18
19
CITY OF CHANHASSEN
EXHIBIT A
to
WATER TOWER ANTENNAE AGREEMENT
(Legal Description)
Pursuant to that certain Water Tower Antennae Agreement between the City of
Chanhassen as "City" and Nextel West Corp., a Delaware corporation d/b/a Nextel
Communications as "COMMUNICATIONS COMPANY"., is leasing from City a certain
portion of the real property owned by the City (the "Property"), which is legally described
as follows:
Lot 7, Block 1, SCHOLER'S 2ND ADDITION, Carver County,
Minnesota, with a street address at 500 W. 76th Street, Chanhassen,
Minnesota 55317.
Property ill #: 257900070
54900.02
r09/0a/97 (RNK)
EXHIBIT B
Page 1 ofk
DESCRIPTION OF PREMISES
to the Agreement dated . 1997, by and between City of
Chanhassen, a Minnesota municipal corporation, as Lessor, and N exteI West Corp., a
Delaware corporation, d.b.a Nextel Communications, as Lessee.
The Premises are described anellor depicted as follows:
PLEASE SEE ATTACHED DRAWINGS LABELED AT EXIllBIT B
Notes:
1. This Exhibit may be replaced by a land survey of the Premises once it is received by
Lessee.
2. Setback of the Premises from the Land's boundaries shall be the distance required by the
applicable governmental authorities.
3. Width of access road shall be the width required by the applicable governmental
authorities, including police and fire departments.
54900.02
r09/0a/97 (RNK)
20
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TO MATCH USWEST SHELTER
THE TYPE. NUMBER AND MOUNTING POSITIONS AND
LOCATIONS OF ANTENNAS AND TRANSMISSION LINES
ARE ILLUSTRATIVE ONLY. ACTUAL TYPES. NUMBERS.
MOUNTING POSITIONS MAY VARY FROM WHAT IS SHOWN
ABOVE.
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EXHIBIT C
Page 1 of ~
DESCRIPTION OF EQUIPMENT SHELTER
to the Agreement dated . 1997, by and between the City of
Chanhassen, a Minnesota municipal corporation, as City, and Nextel West Corp., a Delaware
corporation, d.b.a Nextel Communications, as COMMUNICATIONS COMPANY.
PLEASE SEE ATTACHED DRAWINGS LABELED AS EXIDBIT C, PAGE 2
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BY:
NOT FOR EXECUTION
BY:
NOT FOR EXECUTION
EXHmIT D
FOR EXHIBIT PURPOSES ONLY. EXECUTABLE MEMORANDUM FOLLOWS THIS EXHIBIT
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement is entered into on this _ day of , 1997, by and between the
City of Cbanbassen, a Minnesota municipal corporation, with an address of 690 Coulter Drive, P.O. Box 147, Chanhassen,
MN 55317 (hereinafter referred to as "Lessor"), and Nextel West Corp., a Delaware corporation, d/b/a Nextel
Communications, with an office at 9401 James Avenue South, Suite 180, Bloomington, MN 55431 (hereinafter referred to
as "Lessee").
1. Lessor and Lessee entered into a Communications Site Lease Agreement ("Agreement") on the _ day of
September, 1997, for the purposes of installing, operating and maintaining a radio communications facility and other
improvements. Ail of the foregoing are set forth in the Agreement.
2. The term of the Agreement is for five (5) years commencing on December 1, 1997, or the date that the Lessee
begins construction at the site, whichever first occurs C'Commencement Date"), and terminating on November 30, 2002,
with two (2) successive Five-Year Renewal Terms, and thereafter, one (1) Two-Year Renewal Term.
3. Then Land which is the subject of the Agreement is described in Exhibit A. annexed hereto. The portion of the
Land being leased to Lessee (the "Premises") is described in Exhibit B annexed hereto.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of the date first above
written.
LESSOR: City of Chanbassen, a Minnesota municipal
corporation
LESSEE: Nextel West Corp., A Delaware corporation, d/b/a
Nextel Communications
Date:
Date:
Title: Nancv K. Mancino. Mavor
Title: John C. Shelton. President Midwest Area
TaxID# 41-0885331
Tax ID# 52-1648414
BY:
NOT FOR EXECUTION
Date:
Title: Don Ashworth. City Manager
Tax ID# 41-0885331
ALL SIGNATURES MUST BE ACKNOWLEDGED
ACKNOWLEDGMENT ON FOLLOWING PAGE
(SEAL)
ACKNOWLEDGMENTS
STATE OF:
COUNTY OF:
On , before me, . Notary Public personally appeared
N aney K.Mancino, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity,
and that by her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires:
NOT FOR EXECUTION
STATE OF:
COUNTY OF:
On , before me, , Notary Public,
personally appeared Don Ashworth personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand an~ e,tyciaL.&ea.l.E
' rUK XECUTION
(SEAL)
Notary Public
My commission expires:
STATE OF:
COUNTY OF:
On , before me, , Notary Public,
personally appeared John C. Shelton personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my h<l!lflC3qd ~~ECUTION
(SEAL)
Notary Public
My commission expires:
CLERK: Please return this document to:
Nextel Communications
Attn.: Mallery Loftus
9401 James Avenue South, Suite 180
Bloomington, MN 55431
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement is entered into on this _ day of , 1997, by and between the
City of Chanhassen, a Minnesota municipal corporation, with an address of 690 Coulter Drive, P.O. Box 147, Chanhassen,
MN 55317 (hereinafter referred to as "Lessor"), and Nellel West Corp., a Delaware corporation, d/b/a Nextel
Communications, with an office at 9401 James Avenue South, Suite 180, Bloomington, MN 55431 (hereinafter referred to
as "Lessee").
1. Lessor and Lessee entered into a Communications Site Lease Agreement ("Agreement") on the _ day of
. 1997, for the purposes of installing, operating and maintaining a radio communications facility and
other improvements. All of the foregoing are set forth in the Agreement.
2. The term of the Agreement is for five (5) years commencing on December I, 1997, or the date that the Lessee
begins construction at the site, whichever first occurs ("Commencement Date"), and terminating on November 30, 2002,
with two (2) successive Five-Year Renewal Terms, and thereafter, one (1) Two-Year Renewal Term.
3. Then Land which is the subject of the Agreement is described in Exhibit A. annexed hereto. The portion of the
Land being leased to Lessee (the "Premises") is described in Exhibit B annexed hereto.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of the date first above
written.
LESSOR: City of Chanhassen, a Minnesota municipal
corporation
NOT FOR EXECUTION
LESSEE: Nellel West Corp., A Delaware corporation, d/b/a
Nextel Communications
NOT FOR EXECUTION
BY:
BY:
Date:
Date:
Title: Nancv K. Mancino. Mavor
Title: John C. Shelton. President Midwest Area
Tax ID# 41-0885331
Tax ID# 52-1648414
BY:
NOT FOR EXECUTION
Date:
Title: Don Ashworth. City Manae-er
Tax 10# 41-0885331
ALLSIGNATURESMUSTBEACKNO~DGED
STAlE OF:
COUNTY OF:
On . before me, . Notary Public personally appeared
Nancy KMancino, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instnunent and acknowledged to me that she executed the same in her authorized capacity,
and that by her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
NOT FOR EXECUTION
Notary Public
My commission expires:
(SEAL)
STAlE OF:
COUNTY OF:
On . before me, , Notary Public,
personally appeared Don Ashworth personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instnunent.
WITNE~cff ffi~~~N
Notary Public
My commission expires:
(SEAL)
ACKNO~EDGMENTSCONTmmEDONNEXTPAGE
Notary Public
My commission expires:
(SEAL)
ACKNO~EDGMENTSCON~D
STA'IEOF:
COUNTY OF:
On . before me, . Notary Public,
personally appeared John C. Shelton personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument
WITNESS mNGm ~SfiSl(i:QUTJON
C ITV OF
CHANHASSEN
690 COULTER DRIVE. P.O. BOX 147. CHANHASSEN, MINNESOTA 55317
(612) 937-1900. FAX (612) 937-5739
MEMORANDUM
TO:
Charles Folch, City Engineer
FROM:
Kate Aanenson, Planning Director
DATE:
November 18, 1997
SUBJ:
Cellular Tower
Attached is the report regarding the Nextel cellular tower. The Planning Commission held a
public hearing on November 5, 1997 and recommended approval of the site plan with
modifications. These conditions will be attached to the building permit. Please include this
report with your lease agreement that is being submitted to the council on November 24, 1997.
CITY OF
CHANHASSEN
STAFF REPORT
PC DATE: 1115/97
CC DATE: 11124/97
CASE #: Site 97-14
By: Kirchoff:v
PROPOSAL:
A request for a site plan review for an accessory building for cellular antenna
equipment.
LOCATION:
West 76th Street Water Tower
APPLICANT:
Buell Consulting
905 Jefferson Avenue, Suite 210
S1. Paul, MN 55102
225-0792
ACREAGE:
Approximately 11,250 square feet
DENSITY:
N/A
ADJACENT ZONING
AND LAND USE:
N -PUD-R, Planned Unit Development, Residential
S - RSF, Single-Family Residential
E - RSF, Single-Family Residential
W - RSF, Single-Fainily Residential
WATER AND SEWER:
Available to the site
PHYSICAL CHARACTER.:
This site contains an existing water tower with two
structures. The lot is flat with sparse vegetation.
2000 LAND USE PLAN:
Low Density Residential
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Nextel Antenna Accessory Building
November 19, 1997
Page 2
PLANNING COMMISSION UPDATE
On November 5, 1997 the Planning Commission reviewed the site plan for this accessory
building. The commission approved the site plan with staff's conditions by an unanimous
vote.
APPLICABLE REGULATION
Section 20-110 states that a site and building plan shall be in compliance with standards set forth
in the City Code. Antennas are a permitted use in this district. The City will enter into a lease
agreement with the applicant. The purpose of this meeting is to apply any conditions necessary
to mitigate the impacts and put them into the lease agreement.
BACKGROUND
The applicant is co-locating an antenna on the 76th Street City water tower along with U.S. West.
The U.S. West accessory building has been partially constructed. The brick exterior finish has not
been affixed to the building as of yet. The purpose of this review is to give the Planning
Commission and the neighboring property owners an opportunity to review the proposed building
prior to construction. This will ensure that the building is compatible with the neighborhood.
ANALYSIS
Nextel is constructing an accessory building to house the equipment necessary for the operations of
the antenna to be placed on the City water tower. A neighborhood meeting was held on October 20
to address any concerns the neighbors had with the proposal. The applicant stated that only one
person attended this meeting.
The accessory building will be located just south and east of the water tower. Currently, there are
two buildings on this site, the City storage building and the U.S. West accessory building. The
exterior of the City storage building is painted siding. It is a shade of tan so it blends in with the
neighborhood rather well. (At first sight, it appears to be a garage for the neighboring property.)
The U.S. West building will be covered with a brick veneer. The Nextelbuilding will be covered
with the same brick and the same pattern as the U.S. West building. The brick exterior is similar to
the exteriors for all recent utility buildings built within the community. Both the U.S. West
building and the City storage building have pitched roofs. The proposal indicates that the roof will
be flat but will have a slight slope to remove water from the roof. In order to be compatible with
the other buildings, staff believes that the Nextel building should incorporate a pitched roof.
Staff believes that this building is compatible with both of the existing structures and the
neighborhood. Therefore, it is recommended that the building site plan be approved.
Nextel Antenna Accessory Building
November 19, 1997
Page 3
LANDSCAPING
The proposed building is sufficiently landscaped to screen it from adjoining properties. Plantings
are located on the southern and eastern border of the building. However, staff would recommend
that the plant species Arborvitae be changed to the 4' to 6' variety rather than the Hetz Midget.
RECOMMENDATION
Staff recommends the City Council approve the site plan for the construction of an accessory
building for a cellular antenna with the following conditions:
1. The applicant shall enter into a lease agreement with the City.
2. The building shall incorporate a pitched roof.
3. The landscape plan shall be revised.
ATTACHMENTS
1. Section 20-110, Site Plan Standards
2. Site Plan
3. Property Owners and Public Hearing Notice
4. Planning Commission minutes dated November 5, 1997
ZONING
~ 20.110
,l\+tc-(CU'l VVl"CYl-t:
within the city shall be submitted. Such images and renderings shall be from key
vantage points and provide an undistorted perspective of the proposed develop-
ment from abutting properties, less intensive land uses, and/or from entryway
locations. Photorealistic imaging or renderings are the appropriate level of res.
olution.
(6) Within the HC districts, the application shall also include:
a. Building elevations from all directions, indicating materials, colors and land.
scaping at installation.
b. Building and site views from Highway 5, the appropriate access boulevard (north
or south of Highway 5), and any other appropriate arterial or collector roadways.
c. Site views showing the relationships of the proposed building or development to
adjacent development, including buffered areas.
d. Drawings of all significant or atypical site features, such as unusual landscaping,
manmade water features other than retention ponds, outdoor sculpture, or other
large.scale artwork and other uncommon constructs.
e. Sample building materials, upon the city's request.
f. Sample paving materials, upon the city's request.
(Ord. No. 119, 2.12.90; Ord. No. 203, ~ 2, 5.9.94; Ord. No. 212, ~ 4, 7-11.94)
Sec. 20-110. Standards.
In evaluating a site and building plan, the planning commission and city council shall
consider its compliance with the following:
(1) Consistency with the elements and objectives of the city's development guides, in.
cluding the comprehensive plan, official road mapping, and other plans that may be
adopted;
(2) Consistency with this division;
(3) Preservation of the site in its natural state to the extent practicable by minimizing
tree and soil removal and designing grade changes to be in keeping with the general
appearance of neighboring developed or developing areas;
(4) Creation of a harmonious relationship of buildings and open spaces with natural site
features and with existing and future buildings having a visual relationship to the
development;
(5) Creation of a functional and harmonious design for structures and site features, with
special attention to the following;
a. An internal sense of order for the buildings and uses on the site and provision of
a desirable environment for occupants, visitors and general community;
b. The amount and location of open space and landscaping;
c. Materials, textures, colors and details of construction as an expression of the
design concept and the compatibility of the same with the adjacent and neigh.
boring structures and uses; and
Supp. No.7 1171
~ 20.110
CHANHASSEN CITY CODE
d. Vehicular and pedestrian circulation, including walkways, interior drives and
parking in terms of location and number of access points to the public streets,
width of interior drives and access points, general interior circulation, separation
of pedestrian and vehicular traffic and arrangement and amount of parking.
(6) Protection of adjacent and neighboring properties through reasonable provision for
surface water drainage, sound and sight buffers, preservation of views, light and air
and those aspects of design not adequately covered by other regulations which may
have substantial effects on neighboring land uses.
(7) Within the HC districts, consistency with the purpose, intent, and standards of the
He districts.
(Ord. No. 119, 2.12-90; Ord. No. 212, ~ 5, 7-11.94)
Sec. 20.111. Public hearing.
Upon receipt of a completed application, a date shall be set for review of the site plan
before the planning commission. The review will be held no less than ten (10) days after mailed
notice is sent to the owner of properties located wholly or partially within five hundred (500)
feet of the site, as reflected in the records of the county auditor. The director of planning may
require an expanded mailing list for sites fronting on lakeshore where the development would
be visible over a larger area. Following the hearing or any continuance thereof which is not
appealed by the applicant, the planning commission shall make a recommendation. The site
plan shall be forwarded to the city council with the planning commission's recommendation for
review on the next available agenda. Final approval of the site plan requires a simple majority
vote of the city council.
(Ord. No. 119, 2.12.90)
Sec. 20.112. Multiple applications.
Any site and building plan application which is accompanied by a request for a conditional
use permit or for a rezoning amendment to this division shall be considered by the planning
commission concurrently with the conditional use permit or rezoning application.
(Ord. No. 119, 2.12-90)
Sec. 20.113. Administrative approvals.
Minor site plan and building alterations which do not involve a variance, which are
consistent with the intent of the approval relative to all aspects of the site and building plans
and which are not accompanied by other. matters requiring consideration by the planning
commission or city council, may be approved by the director of planning. The director is not
authorized to approve the principal construction of new buildings or alterations to existing
buildings that would add more than ten (10) percent to the existing gross floor area. If any
application is processed administratively, the director of planning shall render a decision
Supp. No.7
1172
NOTICE OF PUBLIC HEARING
PLANNING COMMISSION
Wednesday, November 5, 1997
at 7:00 p.m.
City Hall Council Chambers
690 Coulter Drive
UBJECT: An Accessory Building for
Cellular Tower Equipment
PLlCANT: Buell Consulting
West 76th Street Water Tower
NOTICE: You are invited to attend a public hearing about a proposal in your area. The
applicant, Buell Consulting, is requesting site plan approval for an accessory building for
cellular tower equipment. The antenna will be located on the West 76th Street Water Tower.
What Happens at the Meeting: The purpose of this public hearing is to inform you about the
developer's request and to obtain input from the neighborhood about this project. During the
meeting, the Commission Chair will lead the public hearing through the following steps:
Staff will give an overview of the proposed project.
The Developer will present plans on the project.
Comments are received from the public.
Public hearing is closed and the Commission discusses project. The commission will then
make a recommendation to the City Council.
Questions and Comments: If you want to see the plans before the meeting, please stop by City
Hall during office hours, 8:00 a.m. to 4:30 p.m., Monday through Friday. If you wish to talk to
someone about this project, please contact Cindy at 937-1900 ext. 117. If you choose to submit
written comments, it is helpful to have one copy to the department in advance of the meeting. Staff
will provide copies to the Commission.
Notice of this public hearing has been published in the Chanhassen Villager on October 23, 1997.
~J1c~d0
I{) -01.:.3.- 97
(!6i!/:9)
STEVE BECHER
402 76TH ST W
CHANHASSEN, MN 55317
ROBERT A & SHERYL W RUNNING
7604 HURON
CHANHASSEN, MN 55317
JAMES L & TERRI A BUKER
514 LAREDO LN
CHANHASSEN, MN 55317
DALE & KRISTINA LARSEN
404 76TH ST W
CHANHASSEN, MN 55317
JAMES & JANET SCHINDLER
7606 HURON
CHANHASSEN, MN 55317
CRAIG R & CATHLEEN BURD
515 LAREDO LN
CHANHASSEN, MN 55317
ELLIS L JR & JANET A THOMAS
406 76TH ST W
CHANHASSEN, MN 55317
MARTIN H & BEVERLY J RICKER
7608 HURON
CHANHASSEN, MN 55317
MICHAEL & JOYCE E WALSH
512 76TH ST W
CHANHASSEN, MN 55317
DENNIS HOPIA
408 76TH ST W
CHANHASSEN, MN 55317
LINDA ORWOLL
7610 HURON BOX 883
CHANHASSEN, MN 55317
NORMAN A & FAYE MARIE RADTKE
510 76TH ST W
CHANHASSEN, MN 55317
ADELINE M SKLUZACEK
410 76TH ST W BOX 154
CHANHASSEN, MN 55317
JOHN R RYAN
7613 IROQUOIS AVE
CHANHASSEN, MN 55317
JOHN F & SHARON A BEAR
508 76TH ST W
CHANHASSEN, MN 55317
GEORGE & BERNADINE J BENIEK
412 76TH ST W PO BOX 303
CHANHASSEN. MN 55317
SCOTT A BRADY &
7611 IROQUOIS AVE
CHANHASSEN, MN 55317
JUDITH A LEATHAM
506 76TH ST W
CHANHASSEN, MN 55317
JOHN T BUSCH &
7607 HURON
CHANHASSEN, MN 55317
THOMAS H KURTZ
7609 IROQUOIS
CHANHASSEN, MN 55317
MARK & DIANNE JOHNSON
504 76TH ST W
CHANHASSEN, MN 55317
LAURA LEE HElM BAUMTROG
7605 HURON PO BOX 296
CHANHASSEN, MN 55317
RICHARD ALLEN POWELL &
7607 IROQUOIS AVE
CHANHASSEN, MN 55317
JOSEPH F & DELIA G WARNEKE
502 76TH ST W
CHANHASSEN, MN 55317
WESLEY E & ALICE I FLANDERS
7603 HURON
CHANHASSEN, MN 55317
JOHN R & DONNA B MITCHELL
7605 IROQUOIS
CHANHASSEN, MN 55317
CITY OF CHANHASSEN
690 COULTER DR PO BOX 147
CHANHASSEN, MN 55317
DALE W & MARY ANN GEVING
7602 HURON
CHANHASSEN, MN 55317
RICHARD E & PATRICIA A BERG
7603 IROQUOIS
CHANHASSEN, MN 55317
KENNETH C & DARCY N HALL
501 76TH ST W
CHANHASSEN, MN 55317
EN & SANDRA M KEl2ENBERG
IROQUOIS
HASSEN, MN 55317
ARD L & RENEE F CARLSON
IROQUOIS
HASSEN, MN 55317
A & TERESA L BOETTCHER
IROQUOIS
HASSEN, MN 55317
RTT & DAWN M BRASCH
ROQUOIS
HASSEN, MN 55317
LD & BETTY E MANTEUFFEL
IOWA AVE BOX 174
HASSEN, MN 55317
TTA E L1TTFIN
IOWA AVE BOX 214
HASSEN, MN 55317
ND & ROSE PEITZ
IOWA AVE BOX 205
ASSEN, MN 55317
NCE & LORRAINE A PESHEK
IOWA AVE BOX 255
ASSEN, MN 55317
EN J & LYNDA L TERSTEEG
IOWA AVE
ASSEN, MN 55317
& KARON ALCOTT
OWA AVE
ASSEN, MN 55317
CHARLES J & CATHLEEN M GALLAND
7604 KIOWA AVE
CHANHASSEN, MN 55317
JOHN F & SHIRLEY M KREGER
7606 KIOWA AVE BOX 252
CHANHASSEN, MN 55317
JAMES G & MARY ANN GUNVILLE
7608 KIOWA AVE PO BOX 15
CHANHASSEN, MN 55317
ANTHONY M & PATRICIA PIERI
7607 LAREDO DR
CHANHASSEN, MN 55317
BRIAN S & CHRISTINE M BENIEK
7605 LAREDO DR
CHANHASSEN, MN 55317
ELAINE D BJORNSON
7603 LAREDO DR BOX 261
CHANHASSEN, MN 55317
MATT JOHNSON
424 SANTA FE CIR
CHANHASSEN, MN 55317
BONN H & VERNELLE E CLAYTON
422 SANTA FE CIR
CHANHASSEN, MN 55317
DANIEL L & LEZLlE A BERG
420 SANTA FE CIR
CHANHASSEN, MN 55317
DONALD & RENELDA J SATHER
418 SANTA FE CIR
CHANHASSEN, MN 55317
NANCY L WEFEL
416 SANTA FE CIR
CHANHASSEN, MN 55317
DENNIS M & MARION J ANDERSON
414 SANTA FE TRL
CHANHASSEN, MN 55317
NICOLE FORSMAN
412 SANTA FE TRL
CHANHASSEN, MN 55317
JOHN A & ANN E CURTIS
410 SANTA FE CIR
CHANHASSEN, MN 55317
SUSAN MARIE ORN
415 SANTA FE TRL
CHANHASSEN, MN 55317
ROSS R & MARY JO KAMERUD
413 SANTA FE TRL
CHANHASSEN, MN 55317
RICHARD J & RACHAEL GALARNEAU
411 SANTA FE TRL
CHANHASSEN, MN 55317
DAVID TRAUTMANN
409 SANTA FE TRL
CHANHASSEN, MN 55317
LEONARD J & JUDITH J SWANSON
407 SANTA FE TRL
CHANHASSEN, MN 55317
RONALD L & PATRICIA A MIELKE
405 SANTA FE TRL
CHANHASSEN, MN 55317
LARRY A HEUER
403 SANTA FE TRL
CHANHASSEN. MN 55317
BRUCE L & REBECCA GRANOWSKI
504 DEL RIO DR
CHANHASSEN, MN 55317
JIM & MARIANNE MOLINE
507 DEL RIO DR
CHANHASSEN, MN 55317
TIMOTHY CARL T
517 DEL RIO DR
CHANHASSEN, MN 55317
GARY C & 0 KRAUSE
505 DEL RIO DR
CHANHASSEN. MN 55317
WILBUR F & MILDRED A A YDT
515 DEL RIO DR
CHANHASSEN. MN 55317
DAVID L & MARY L GRIGNON
503 DEL RIO DR
CHANHASSEN. MN 55317
WOJCIECH WORWAG
513 DEL RIO DR
CHANHASSEN. MN 55317
KAROL K NIELSEN
516 DEL RIO DR
CHANHASSEN. MN 55317
BRUCE L & CAROLYN J ANDERSON
511 DEL RIO DR
CHANHASSEN. MN 55317
GORDON J & SHARON E NAGEL
514 DEL RIO DR
CHANHASSEN, MN 55317
JAMES A & KATHLEEN BLETTNER
509 DEL RIO DR
CHANHASSEN. MN 55317
RICHARD W & BECKY A TURPEN
512 DEL RIO DR
CHANHASSEN. MN 55317
MARVEN N & MARY J NYBERG
419 SANTA FE TRL
CHANHASSEN. MN 55317
PETER G & KAREN J JEAPES
510 DEL RIO DR
CHANHASSEN. MN 55317
XIANGSHENG MENG &
417 SANTA FE TRL
CHANHASSEN. MN 55317
NORBERT S & THERESA L KERBER
508 DEL RIO DR
CHANHASSEN. MN 55317
BRET W & MARY E HAGEN
506 DEL RIO DR
CHANHASSEN, MN 55317
CHANHASSEN PLANNING COMMISSION
REGULAR MEETING
NOVEMBER 5, 1997
Vice Chairman Joyce called the meeting to order at 7:10 p.m.
MEMBERS PRESENT: Ladd Conrad, Alison Blackowiak, Allyson Brooks, Kevin Joyce, and
LuAnn Sidney
MEMBERS ABSENT: Craig Peterson
STAFF PRESENT: Kate Aanenson, Planning Director; Cynthia Kirchoff, Planner I; Sharmin
AI-Jaff, Planner II; and Dave Hempel, Asst. City Engineer
BUELL CONSULTING IS REQUESTING A SITE PLAN REVIEW FOR AN
ACCESSORY BUILDING FOR CELLULAR TOWER EQUIPMENT. THE ANTENNA
WILL BE LOCATED ON THE WEST 76TH STREET WATER TOWER.
Cynthia Kirchoff presented the staff report on this item.
Joyce: Thank you. Are there any questions for staff at this time?
Blackowiak: Mr. Chairman, I have a quick question. The building that's currently on there, or
being built, it says in the report that it had a pitched roof and I was out there today and I did not
see a pitched roof. It is being in the process of being put on or?
Kirchoff: On the plans for the Nextel building, it does have a pitched roof.
Blackowiak: No, not the Nextel building. The building that's right, the U.S. West building. I
did not see a pitched roof.
Kirchoff: According to the plans that we have, it appears to have a pitched roof. That's what we
based the recommendation on. It does have a slightly pitched roof for the ice and water.
Blackowiak: How do you define pitched then? I mean like less than 12 inches or?
Kirchoff: Well it doesn't have a flat roof. It's a pitched roof.
Blackowiak: In the center?
Kirchoff: Yeah.
Blackowiak: Okay. It wasn't apparent. I mean I went to the street but there was construction
there and it was kind of, they were working on it so I didn't dare go back there so. Ijust didn't
see any pitched roof so. Okay.
Sidney: That was the same question I had. You know what kind of pitch are you talking about.
Similar to the U.S. West?
Kirchoff: The plan shows this is the U.S.West shelter...
Aanenson: The pitch is probably.. . side of the building...
Joyce: Okay. Is the applicant here and like to address the Planning Commission? State your
name and address and company please.
Bill Buell: Yes. Mr. Chairman, members of the commission, my name is Bill Buell. I'm with
Buell Consulting and we represent Nextel Communications whose address is 9401 James
Avenue in Bloomington. And I don't have a lot to add. Maybe I can explain the pitched roof.
The existing U.S. West building is a very similar building to the building that we have, that we're
planning to use. There is a pitch on the roof of about 2 inches over across the width of the roof.
I believe the plans I saw of the U.S. West building showed a pitched roof that is a metal ice
bridge. It's going to be a metal roof, as I understand it, and it doubles as to look like a pitched
roofbut it's also to protect from falling ice from the water tower. We don't feel that's necessary
because when the tank is full of water it doesn't create ice and our building, even if there was ice
to fall, it would not penetrate our roof. Our building is built with an ice resistant roof. And I've
read the report and we agree with the report. Weare willing to change our landscaping plan.
Although I would ask that we not be required to put a pitched roof on our building because we
don't need the ice protection and I think that the way the buildings are arranged, if! could, let's
see I have mine on a 8 Y2 x 11. Can I put that on the? This is the site plan. For the view from
the road, if we had a flat roof, the view you would get from all the buildings would be of just a
flat, or you know the horizontal side. And so our flat roof wouldn't look out of place. If you
look at it from a side view, it's the same idea. Because of the way our building is turned, I don't
know ifit would make that much ofa difference ifit's pitched or flat. We've also already
ordered the building and they take 6 to 8 weeks to arrive and that would set us back quite a while.
Because the buildings come flat, just like the U.S. West roof, or U.S. West building.
Joyce: Is this an aesthetic situation or?
Aanenson: I believe so. We tried to make it residential in character to match the
neighborhood. . .
Joyce: And you're saying this would set your timing back?
Bill Buell: Yes it could if we needed to order a new building and we're not sure if we can just
add a pitched roof to the building we have.
Joyce: Okay.
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Bill Buell: Then as far as the landscaping plan, of this plan, the plants chosen were chosen to
match up with the U.S. West landscaping plan. We agree that the dwarf arborvitae probably
would not provide the screening that the upright 4 to 6 foot plants would provide so we're
willing to change those. Although I think the number should probably be reduced. I don't know
if they would all fit in there because the midgets are so much smaller in diameter. So perhaps if
it's approved, the landscape plan, the number of plants could just be as approved by staff. I mean
we're certainly willing to try to jam them in there but I think it would look, it would cover up the
nice rhododendrons and the potentilla. I think we should change the arrangement a little bit so
you can take advantage of those.
Joyce: I don't see a number in the report. Is there just?
Bill Buell: The plan we submitted calls for 22 ofthe midget arborvitae. But if we go to 4 foot or
6 foot uprights, they would, I don't think they would fit in. The 22 wouldn't fit in there. But I'm
just asking, we don't need to, I don't think we need to decide on a number. We'd be willing to
go along with whatever staff recommends.
Joyce: I think a recommendation is that the landscape plan be revised to accept what we need as
far as the arborvitae. Any questions for the applicant? Thank you very much.
Bill Buell: Thank you. Do we need to call this for an open?
Aanenson: No. You can ask if there's anyone here to speak but technically it's not a public
hearing.
Joyce: It's not a public hearing.
Aanenson: But there may be people here. We did notify people so...
Joyce: Oh okay. Is there anybody in the audience who would like to speak regarding this issue?
Okay. So we bring it back to the Planning Commission then? All right. LuAnn.
Sidney: Okay. Well I guess I have a question for staff about the pitched roof. If this is an
aesthetic thing, in this case, how well shielded are the buildings from the neighborhood at this
point? I'm sorry I didn't go out and look at the site but is it really going to make a difference
whether or not the roof is pitched?
Kirchoff: The buildings are immediately adjacent to a garage. They will be noticeable. We just
wanted to make it more neighborhood like rather than utility building with a flat roof.
Sidney: Do you stick with your recommendation for a pitched roof? If it is visible.. . concerned
about that along with staff. And then also I guess about the landscaping. Just.. . make the number
of plant materials.
Joyce: Yes, thank you. Ladd.
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Conrad: Nothing to add. I agree with the staff report. I think the applicant should work with the
staff to revise the landscape plan. I agree with the applicant, we don't need to cram in more than
what's necessary.
Joyce: Any problem with the pitched roof or keep it the way it is?
Conrad: I think we should keep it pitched. I think that's real important.
Joyce: I think so, yeah.
Conrad: Ijust can't believe that a minor, we're not talking about a major pitch and we're not
talking about a major building. I can't believe that's going to delay anything. But regardless, if
it is or not, we should have a pitched roof there.
Joyce: Alison.
Blackowiak: I agree with...I don't have anything new to add.
Brooks: I don't have anything to add either.
Joyce: I basically echo those feelings. I'm glad to see the co-locating on the site. And I just
think that once we get involved in this situation with these antennas, that we have to keep an idea
of what we're doing in the neighborhoods and keep the aesthetics up on some of these buildings
that are going to need to house this equipment so I'm going to go along with the staff on this. So
we need a motion.
Sidney: I make a motion that Planning Commission approve the site plan for the construction of
an accessory building for cellular antenna with the following conditions, 1 through 3 in the staff
report.
Joyce: Thank you. Can I have a second?
Brooks: I'll second.
Sidney moved, Brooks seconded that the Planning Commission recommends approval of
the site plan for the construction of an accessory building for a cellular antenna with the
following conditions:
1. The applicant shall enter into a lease agreement with the City.
2. The building shall incorporate a pitched roof.
3. The landscape plan shall be revised.
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All voted in favor and the motion carried.
PUBLIC HEARING:
CONDITIONAL USE PERMIT FOR THE OPERATION OF A HAM RADIO TOWER
ON PROPERTY ZONED A2. AGRICULTURAL ESTATE DISTRICT AND LOCATED
AT 1905 STOUGHTON A VENUE. STEPHEN KUBITZ.
Cynthia Kirchoff presented the staff report on this item.
Joyce: Thank you. Any questions for staff? Is the applicant here? Okay. Why don't we open it
up to a public hearing. Can I get a motion to open it to a public hearing?
Conrad moved, Blackowiak seconded to open the public hearing. The public hearing was
opened.
Joyce: Thank you. Would anybody like to discuss this in front of the Planning Commission?
Then I make a motion to close the public hearing.
Sidney moved, Brooks seconded to close the public hearing. The public hearing was closed.
Joyce: Ladd?
Conrad: Nothing. Now that we have the National Weather Service here, I always like a back-up
for them. No. No comments.
Blackowiak: No comments.
Brooks: No comments.
Sidney: One comment.
Joyce: Oh, okay.
Sidney: I guess, when I saw condition to the applicant, let's make the tower inaccessible. I guess
I thought well, we need to be more specific. For climbing and add that as part of the condition
because inaccessibility implies you can never have access to it which you may need to at some
point. So that would be my one comment.
Joyce: Sounds good to me. Can we have a motion please?
Brooks: I move the Planning Commission recommends approval of the conditional use permit
for a 64 foot ham radio tower upon the findings presented in.the staff report, and the following
stipulations with 1 through 4 with 2 being amended to say the applicant must make the tower
inaccessible for climbing.
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