1k. Nextera, Inc., Wi-Fi Services, TH 5: Approve Water Tower Lease Agreement
CITY OF
CHANHASSEN
7700 Market Boulevard
PO Box 147
Chanhassen, MN 55317
Administration
Phone: 952,227,1100
Fax: 952,227,1110
Building Inspections
Phone: 952,227,1180
Fax: 952,227,1190
Engineering
Phone: 952,227.1160
Fax: 952,227.1170
Finance
Phone: 952.227.1140
Fax: 952,227.1110
Park & Recreation
Phone: 952,227,1120
Fax: 952,227.1110
Recreation Center
2310 Coulter Boulevard
Phone: 952,227.1400
Fax: 952,227,1404
Planning &
Natural Resources
Phone: 952,227,1130
Fax: 952,227,1110
Public Works
1591 Park Road
Phone: 952.227,1300
Fax: 952,227.1310
Senior Center
Phone: 952,227,1125
Fax: 952,227.1110
Web Site
www.ci.chanhassen.mn.us
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~ .- ~-
MEMORANDUM
TO:
Todd Gerhardt, City Manager
Laurie Hokkanen, Assistant City Manager ~
~
t)~
FROM:
DA TE:
August 7, 2009
SUBJ:
Water Tower Lease Agreement - Nextera Wireless Internet
PROPOSED MOTION
The City Council moves to enter into a Water Tower Lease Agreement with
Nextera commencing on August 1, 2009.
BACKGROUND
Staff has been approached by Nextera Wireless, Inc. regarding a proposal to
expand the wireless internet services they currently provide to commercial and
industrial locations within Chanhassen using the downtown water tower (in place
since 2006). This would be accomplished by installing 8 panels on the W. 82nd
water tower (located near the Highway 5 & 41 intersection). While their current
business model remains providing wireless internet services to business/industrial
users, they may be providing residential service at some point.
Highlights of the agreement include:
. The first term of the lease runs from August 1, 2009 - December 31, 2014.
. After the initial term, the lease may be extended by five year terms, not to
exceed a total of 20 years.
. Rent shall be in the form of 5% gross revenues derived from subscriptions
originating from this site. (Rent from the Downtown site has averaged
$1200 annually).
. The City shall receive five free subscriptions for use at its discretion.
. Utilities and taxes associated with the improvements on the site will be
paid by the tenant.
This agreement has been reviewed by the City Attorney and he finds it to be
acceptable.
RECOMMENDA TION
Staff recommends that the Chanhassen City Council approve the attached Water
Tower Lease Agreement with Nextera for the purposes of expanding wireless
internet services within the city. Approval of this item requires a majority vote of
the city council.
G:\Admin\LH\Cell Phone Towers\Stonebridge\Nextera W 82nd expansion agreement staff report.doc
Chanhassen is a Community for Life - Providing for Today and Planning for Tomorrow
CITY OF CHANHASSEN, MN
WATER TOWER LEASE AGREEMENT
This Tower Lease Agreement ("Lease") is entered into this 10th day of August, 2009 by and between
the City of Chanhassen, a municipal corporation under the laws of the State of Minnesota, ("Landlord") and
Nextera ("Tenant"), whose address is 5909 Baker Rd, Suite 590, Minnetonka, MN 55345.
In consideration of the terms and conditions of this agreement, the parties agree as follows:
1 . Premises
Landlord is the owner of a parcel of land (the "Land") and a water tower (the "Tower") located in the
City of Chanhassen, County of Carver, State of Minnesota more commonly known as the Water
Tower Place - Water Tower (the Tower and Land are collectively, the "Property"). The Land is more
particularly described in Exhibit A annexed hereto. Landlord hereby leases to Tenant and Tenant
leases from Landlord, approximately < 1% of the Land and space on the Tower and all access and
utility easements, if any (collectively, the "Premises") as described in Exhibit B annexed hereto.
2. Term/Renewals
The term shall commence on Auqust 1. 2009 (with said date hereinafter referred to as
"Commencement Date") and end December 31. 2014. This Lease will automatically renew
according to the terms and conditions herein for four (4) successive five (5) year renewal terms
unless Tenant notifies Landlord at least sixty (60) days prior to expiration of its intention not to renew
the Lease. Landlord may deny renewal of this Lease at its sole discretion by written notification of its
intention not to renew the Lease at any time at least ninety (90) days prior to the expiration of the
second renewal term or any subsequent renewal term.
3. Rent
a. Tenant shall pay Landlord for use of Landlord's property a fee equal to five percent (5%) of
gross revenues derived from the operation of subscriber equipment associated with
Landlord's property used by Tenant. Services originating from the Landlord's property as a
transmit or as a receive signal to a subscriber, regardless of the Tenant's subscriber's actual
location, are subject to the fee. Tenant shall pay Fee no later than 30 days after the end of
each calendar quarter. In the event payment is not paid within the required time, Tenant shall
also pay interest in the amount of ten percent (10%) compounded annually until paid in full for
the previous quarter. If at any time, Tenant ceases operations, either temporarily or
permanently, tenant shall be responsible to pay all unpaid Fees within 30 days after the end
of the quarter in which Tenant's operation was halted or ended.
b. Tenant shall keep accurate books and records of its accounts, relative to the Landlord's
Lease arrangement, which are accessible by the Tenant at any time during regular business
hours on ten (10) days prior written notice. Landlord may audit the books from time to time at
Landlord's sole expense, but in each case only to the extent necessary to confirm the
accuracy of payments. In the event that the location of the Tenant's books and records are
not easily accessible to the Landlord, then Tenant shall provide the relative portions of its
books and records as reasonably necessary for Landlord to confirm the accuracy of any
payments due. Should an audit performed pursuant to this paragraph disclose an
underpayment of amounts due under this Agreement, then Tenant shall reimburse the
Landlord for the costs of the audit, in addition, to paying the Landlord the amount of the
underpayment, plus interest of ten per-cent (10%) compounded annually forward from period
of underpayment to when underpayment is completely reconciled with Landlord.
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c. In addition to Tenant's payment of Fee, Landlord shall have the right throughout
the term of this Agreement to have free use of all and any equipment necessary to
receive up to 5 subscription services of 1 or more Mbps per installed panel location, when
that service is readily available using the technology which Nextera has in place.
Location of the free subscription services shall be solely determined at the discretion of the
Landlord, and location may be changed at the discretion of the Landlord upon thirty (30) days
notice to Tenant, not to exceed two times annually. Initial installation locations will include
7901 Park Place, 6400 Minnewashta Parkway, 201 West 79th St, and 2310 Coulter Blvd.
Any expense associated with installation of Tenant's equipment to receive such free services
shall be borne by the Tenant. The services shall be provided through the life of this
agreement. The number of services can be negotiated when the lease is renewed every five
(5) years.
d. If this Lease is terminated at any time, service will end with the termination with thirty (30)
days notice. Tenant may not add additional equipment and/or antennas from that shown on
the Site Plan attached as Exhibit B without the approval of the Landlord.
4. Use
Tenant may use the Premises for the purpose of constructing, maintaining, and operating a wireless
communications facility between 5.170 - 5.850, 11. and 188Hz and 3.65 8Hz (for VOIP)
frequencies, and for the storage of related equipment in accordance with the terms of this Lease.
Tenant's use shall consist of antennae on the side and/or top of the Tower, along with cables and
building as may be provided in the Site Plan attached as Exhibit B. Tenant may erect and operate ~
panel antennae on the side/top of the Tower. Tenant shall use the property in compliance with all
federal, state, and local laws and regulations. Landlord agrees to reasonably cooperate with Tenant
in obtaining, at Tenant's expense, including Landlord's reasonable attorney and administrative fees,
any licenses and permits required for Tenant's use of the property.
5. BuildinQ Construction Standards
Landlord may request Tenant's antennae and identified facilities specified in Exhibit B, be painted, at
Tenant's expense, the same color as the Tower.
6. Installation of Equipment and Leasehold Improvements
a. Tenant has the right to erect, maintain and operate on the Premises radio communications
facilities, including without limitation utility lines, transmission lines, air conditioned equipment
shelter(s), electronic equipment, radio transmitting and receiving antennas and supporting
equipment and structures thereto ("Tenant Facilities"). In connection therewith, Tenant has
the right to do all work necessary to prepare, maintain and alter the Premises for Tenant's
business operations and to install transmission lines connecting the antennas to the
transmitters and receivers. All of Tenant's construction and installation work shall be
performed at Tenant's sole costs and expense and in a good and workmanlike manner. Title
to the Tenant Facilities shall be held by Tenant. All of Tenant Facilities shall remain Tenant's
personal property and are not fixtures. Tenant has the right to remove all Tenant Facilities at
its sole expense on or before the expiration or earlier termination of the Agreement; provided,
Tenant repairs any damage to the Premises caused by such removal.
b. Tenant's installation of the Tenant Facilities shall be done according to plans approved by
Landlord. Any damage done to the property and/or Tower itself during installation and/or
during operations shall be repaired or replaced within thirty (30) days at Tenant's expense
and to Landlord's reasonable satisfaction.
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c. Subsequent to construction, Tenant shall provide Landlord with as-built drawings of the
Tenant Facilities which show the actual location of all equipment and improvements. Said
drawings shall be accompanied by a complete and detailed inventory of all Tenant Facilities.
7. Eauipment Up~rade
Tenant may update or replace the Tenant Facilities from time to time provided that the replacement
facilities are not greater in number, size or volume than that specified in this Agreement. Any change
in their location, other than that indicated in this Agreement, shall be subject to Landlord's written
approval, which approval shall not be unreasonably withheld or delayed.
8. Maintenance
a. Tenant shall, at its own expense, maintain the Tenant Facility safely, in good repair and in a
manner suitable to Landlord.
b. Tenant shall have sole responsibility for the maintenance, repair, and security of its Tenant
Facilities, and shall keep the same in good repair and condition during the Lease term.
C. Tenant must keep the premises free of debris and anything of a dangerous, noxious or
offensive nature or which would create a hazard, undue vibration, heat, noise, interference,
etc.
d. In the event the Landlord repaints its Tower, it shall be the responsibility of the Tenant to
provide adequate measures to cover Tenant Facilities and protect such from paint and debris
fallout which may occur during the paint restoration process, provided Landlord give a
minimum of 30 days notice of any work on the Tower.
e. In the event the Landlord repaints the Tower and such activity requires the removal of the
Tenant Facilities from the Tower, Tenant shall be allowed to place a temporary antenna
mounting facility, at a mutually agreeable location on the Property, in order to maintain
uninterrupted use of the Tenant Facilities.
f. The Tenant shall reimburse the Landlord for Any additional expense of repainting, repairing,
or maintaining the Property reasonably incurred by the Landlord as a result of the Tenant's
use of the property. Reimbursement shall be made by Tenant within thirty days of receipt of
an invoice from Landlord.
g. Tenant shall remove its property upon reasonable notice to allow maintenance, repair, and
repainting the Property.
9. Property Access
a. Tenant, at all times during this Lease, shall have vehicle ingress and egress over the
Property by means of the existing access, subject to notice requirements to Landlord in 9b,
below.
b. Tenant shall have reasonable access to the Property in order to install, operate, and maintain
the Tenant Facilities. Tenant shall have access to such facilities only with the approval of
Landlord. Tenant shall request access to the premises twenty-four (24) hours in advance,
except in an emergency.
c. Landlord shall be allowed and granted access to the Premises at reasonable times to
examine and inspect the Tenant Facilities and/or the Premises for safety reasons or to
ensure that the Tenant's covenants are being met.
10. Utilities
Tenant shall not be required to install a separate meter. Tenant will pay a $25 per month fee in order
to access Landlord's electric and other utilities.
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11. Compliance with Statutes, ReQulations, and Approvals
It is understood and agreed that Tenant's use of the Property herein is contingent upon its obtaining
all certificates, permits, zoning, and other approvals that may be required by any federal, state or local
authority. Tenant's Facilities shall be erected, maintained and operated in accordance with all
Federal, State and local rules and regulations now or hereafter in effect.
12. Interference
Tenant's installation, operation, and maintenance of Tenant's Facilities shall not damage or interfere
in any way Landlord's Tower operations or related repair and maintenance activities and Tenant
agrees to cease all such actions which materially interfere with Landlord's use of the Tower
immediately upon actual notice of such interference, provided however, in such case, Tenant shall
have the right to terminate the Lease. Landlord, at all times during this Lease, reserves the right to
take any action it deems necessary, in its sole discretion, to repair, maintain, alter or improve the
Property in connection with Tower operations as may be necessary. The Landlord agrees to give
reasonable advance written notice of any such activities to the Tenant and to reasonably cooperate
with Tenant to carry out such activities with a minimum amount of interference with Tenant's use of
the Property.
Landlord in no way guarantees to Tenant subsequent noninterference with Tenant's transmission
operations, provided, however, that in the event any other party except a governmental unit, office or
agency requests permission to place any type of additional antenna or transmission facility on the
Property the procedures of this Paragraph shall govern to determine whether such antenna or
transmission facility will interfere with Tenant's transmission operations.
If Landlord receives any such request, Landlord shall submit the proposal complete with all technical
specifications reasonably requested by Tenant to Tenant for review for noninterference. Tenant shall
have thirty (30) days following receipt of said proposal to make any objections thereto, and failure to
make any objection within said thirty (30) day period shall be deemed consent by Tenant to the
installation of antennas or transmission facilities pursuant to said proposal. If Tenant gives notice of
objection due to interference during such 30-day period and Tenant's objections are verified by
Landlord to be valid, then Landlord shall not proceed with such proposal. The entities requesting an
additional lease shall be responsible for the expenses incurred in any independent validation of
Tenant's interference objections, provided, however, should the independent analysis conclude that
Tenant's interference objections were invalid, Tenant shall be responsible for any independent
validation fees. A governmental unit may be allowed to place antennae or other communications
facilities on Tower regardless of potential or actual interference with Tenant's use, provided however,
if Tenant's use of the Property is materially affected, Tenant may terminate the Lease.
Tenant's use and operation of the Tenant Facilities shall not interfere with the use and operation of
other communication facilities on the Tower which pre-existed Tenant's facilities. If Tenant's facilities
cause impermissible interference, Tenant shall take all measures reasonably necessary to correct
and eliminate the interference. If the interference cannot be eliminated in a reasonable time, Tenant
shall immediately cease operating its facility until the interference has been eliminated. If the
interference cannot be eliminated within 30 days, Landlord may terminate this Agreement.
13. Termination
Except as otherwise provided herein, this Lease may be terminated by either party upon written notice
of default to the other party as follows: (a) by either party upon a 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 at law, in equity, or
pursuant to any other provisions hereof); or (b) by Tenant if it is unable to obtain or maintain any
license, permit, or other governmental approval necessary for the construction and/or operation of the
Tenant Facilities or Tenant's business; or (c) by Tenant if Tenant is unable to occupy and utilize the
Premises due to an action of the FCC, including without limitation, a take back of channels or change
in frequencies; or (d) by Tenant if Tenant determines that the Premises are not appropriate for its
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operations for economic or technological reasons, including, without limitation, signal interferences;
(e) by Landlord upon ninety (90) days written notice return receipt requested if the City Council
decides, in its sole discretion and for any reason, to sell or redevelop the Property and/or discontinue
use of the Property for water tower purposes; (f) by Landlord upon one hundred eighty (180) days
written notice if it determines, in its reasonable discretion and for any reason, that the Property is
structurally unsound for Tenant's use, including but not limited to consideration of age of the structure,
damage or destruction of all or part of the Property from any source, or factors relating to condition of
the Property; or (g) by Landlord if it determines that continued occupancy of Property by Tenant is in
fact a threat to health, safety or welfare.
Upon termination of this Lease for any reason, Tenant shall remove the Tenant Facilities from the
Property within. The Tenant shall continue to pay Rent pursuant to this Lease Agreement during any
period of time when any portion of the Facilities remains on the Property. Tenant shall also repair any
damage to the Property caused by such removal, other than normal wear and tear, at Tenant's sole
cost and expense. Any portion of the Tenant's facilities which are not removed within ninety (90) days
after termination shall become the property of Landlord.
14. Liauidated Damaaes: Early Termination
Notice of Tenant's early termination shall be given to Landlord in writing by certified mail, return
receipt requested, and shall be effective upon receipt of such notice. All rentals paid for the lease of
the Property prior to said termination date shall be retained by the Landlord. Upon such termination,
this Lease shall become null and void and the parties shall have no further obligation to each other.
15. Limitation of Landlord's Liability: Early Termination
In the event Landlord terminates or otherwise revokes the Lease, other than as provided in paragraph
13 above, or Landlord causes interruption of the business of Tenant, Landlord's liability for damages
to Tenant 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 Tenant as a going concern, future
expectation of profits, loss of business or profit or related damages to Tenant.
16. Insurance
a. Tenant shall carry adequate insurance to protect the parties against any and all claims,
demands, actions, judgments, expenses, and liabilities which may arise out of or result
directly or indirectly from Tenant's use of the Property. Any applicable policy shall list the
Landlord as an additional insured and shall provide that it will be the primary coverage. The
insurance coverage must include, at least, Comprehensive General Liability Insurance
Coverage, including premises/operation coverage, bodily injury, property damage,
independent contractors liability, and contractual liability coverage, in a combined single limit
of not less than One Million Dollars ($1,000,000) per occurrence, subject to One Million
Dollars ($1,000,000) aggregate. Tenant may satisfy this requirement by underlying insurance
plus an umbrella policy. Tenant shall also maintain the worker's compensation insurance
required by law. Tenant may elect to self-insure these requirements subject to the conditions
of this Agreement.
b. Neither party shall be liable to the other (or to the other's successors or assigns) for any loss
or damages caused by fire or any of the risks enumerated in a standard "All Risk" insurance
policy, and in the event of such insured loss, neither party's insurance company shall have a
subrogated claim against the other.
c. Tenant shall provided Landlord, prior to the Commencement Date and before each renewal
of the Lease term, evidence of the required insurance in the form of a certificate of insurance
issued by an insurance company licensed to do business in the State of Minnesota, which
includes all coverage required in Paragraph above. Said certificate shall also provide that the
coverage may not be canceled, non-renewed, or materially changed without thirty (30) days'
written notice to Landlord. In such event, all rights and obligations of the parties shall cease
as of the date of the damage or destruction and Tenant shall be entitled to the
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reimbursement of any rent prepaid by Tenant. If Tenant elects to self-insure, Tenant shall
provide Landlord with a Certificate from the Minnesota Department of Commerce that
authorizes self-insurance, pursuant to Minnesota Statutes.
d. Landlord agrees that it currently has insurance coverage with respect to the Property.
Landlord reserves the right to change said insurance coverage or to self insure.
17. DamaCle or Destruction
If the Property or any portion thereof is destroyed or damaged so as to materially hinder effective use
of the Tenant Facilities through no fault or negligence of Tenant, Tenant may elect to terminate this
Lease upon thirty (30) days' written notice to Landlord. In such event, all rights and obligations of the
parties shall cease as of the date of the damage or destruction and Tenant shall be entitled to the
reimbursement of any rent prepaid by Tenant.
18. Condemnation
In the event the whole of the Property is taken by eminent domain, this Lease shall terminate as of the
date title to the Property vests in the condemning authority. In event a portion of the Property is taken
by eminent domain, either party shall have the right to terminate this Lease 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, Tenant shall not be entitled to any portion of the reward paid for the
taking and the Landlord shall receive full amount of such award. Tenant shall hereby expressly waive
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 Landlord, Tenant
shall have the right to claim and recover from the condemning authority, but not from Landlord, such
compensation as may be separately awarded or recoverable by Tenant on account of any and all
damage to Tenant's business and any costs or expenses incurred by Tenant in moving/removing the
Tenant Facilities.
19. Indemnification
Tenant agrees to indemnify, defend, and hold harmless Landlord 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 Landlord or for
which the Landlord may be liable, which arise from the negligence, willful misconduct, or other fault of
Tenant or its employees, agents, or subcontractors in the performance of this Lease or from the
installation, operation, use, maintenance, repair, removal, or presence of the Tenant Facilities on the
Property, provided same is not due to the negligence or willful default of Landlord.
If Tenant fails or neglects to defend such actions, Landlord may defend the same and any expenses
(including reasonable attorneys' fees) which it may payor incur in defending said actions, as well as
the amount of any judgment or settlement which it may be required to pay, shall promptly be
reimbursed by Tenant.
20. Hazardous Substance Indemnification
Tenant represents and warrants that its use of the Premises, herein, will not generate and it will not
store or dispose on the Property nor transport to or over the Property any hazardous substance
except for substances used in backup power units such as batteries and diesel generators. Tenant
further agrees to hold Landlord harmless from and indemnify Landlord against any release of any
such hazardous substance by Tenant and any damage, loss, or expense or liability resulting from
such release including all attorneys' fees, costs and penalties incurred as a result thereof except any
release caused by the negligence of Landlord, its employees or agents. "Hazardous substance" shall
be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic
6
waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term
by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in
the future, as such laws, regulations or rules may be amended from time to time; and it shall be
interpreted to include, but not be limited to, any substance which after release into the environment
will or may reasonable be anticipated to cause sickness, death or disease.
21. Notices
All notices, requests, demands, and other communications hereunder shall be in writing and shall be
deemed given if personally delivered or mailed, certified mail, return receipt requested, to the
following addresses:
If to Landlord, to: Nextera Wireless LLC
Att: Gina Hoveland
5909 Baker Road Suite 590
Minnetonka, MN 55345
22. AssiQnment and SublettinQ
a. Tenant 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 Landlord; provided, however, that Tenant
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 25 below. Tenant may assign this Agreement upon written notice to
Landlord, subject to the assignee assuming all of Tenant's obligations herein, including but
not limited to, those set forth in Paragraph 25 below. Notwithstanding anything to the
contrary contained in this Agreement, Tenant may assign, mortgage, pledge, hypothecate or
otherwise transfer without consent its interest in this Agreement to any financing, or agent on
behalf of any financing entity to whom Tenant (i) has obligations for borrowed money or in
respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or
similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers
acceptances wand similar facilities or in respect of guaranties thereof.
23. Successors and AssiQns
This Lease shall run with the Property. This Lease shall be binding upon and inure to the benefit of
the parties, their respective successors, personal representatives and assigns.
24. LitiQation and Mediation
Any claim, controversy, or dispute arising out of this Lease shall be governed by the laws of the State
of Minnesota and shall be under the jurisdiction of the District Courts of the State of Minnesota. The
parties agree that prior to file of any such action, the matter shall be submitted to non-binding
mediation which shall be entered into by both parties in good faith.
25. Waiver of Landlord's Lien
a. Landlord waives any lien rights it may have concerning the Tenant Facilities which are
deemed Tenant's personal property and not fixtures, and Tenant has the right to remove the
same at any time without Landlord's consent.
26. Miscellaneous
a. Landlord and Tenant represent that each, respectively, has full right, power, and authority to
execute this Lease.
b. Landlord and Tenant each waive any and all rights to recover against the other for any loss or
damage to such party arising from any cause to the extent covered by any property insurance
7
required to be carried pursuant to this Lease. The parties will, from time to time, cause their
respective insurers to issue appropriate waiver of subrogation rights endorsements to all
property insurance policies carried in connection with the Tower or the Property or the
contents of either.
c. In the event either party hereto shall institute suit to enforce any rights hereunder, the
prevailing party shall be entitled to recover court costs and attorney's fees incurred as a result
thereof.
d. This Lease constitutes the entire agreement and understanding of the parties and
supersedes all offers, negotiations, and other agreements of any kind. There are not
representations or understandings of any kind not set forth herein. Any modification of or
amendment to this Lease must be in writing and executed by both parties.
e. This Lease shall be construed in accordance with the laws of the State of Minnesota.
f. In any term of this Lease is found to be void or invalid, such invalidity shall not effect the
remaining terms of this Lease, which shall continue in full force and effect.
g. The parties acknowledge that this is a nonexclusive lease. Nothing in this Lease shall
preclude Landlord from leasing other space for communications equipment to any person or
entity which may be in competition with tenant, or any other party, subject to the conditions
set forth in paragraph 12 of this Lease.
h. Lessor acknowledges that a Memorandum Agreement in the form annexed hereto as Exhibit
C will be recorded by Lessee in the official records of the County where the Property is
located. In the event the Property is encumbered by a mortgage or deed of trust, Lessor
agrees to obtain and furnish to Lessee a non-disturbance and attornment instrument for each
such mortgage or deed of trust.
i. Tenant shall pay all personal and real property taxes imposed against the Tenant's
equipment or leased Premises. If any improvements constructed or maintained by Tenant on
the Property should cause part of the Property to be taxed for real estate purposes, Tenant
agrees to timely pay its pro rata share of such taxes.
j. Background checks shall be completed on all individuals who request access to any of the
water system facilities, or other public works facility located within the Property. Background
checks performed by the Tenant requesting access for its employees cannot be used in
substitution of Landlord's background check. Landlord reserves the right to refuse access to
any Facility located within or about the Property based on the results of the background
check. Landlord will update the background checks annually. The following guidelines
represent the procedures, duties and responsibilities of Landlord and Tenant with respect to
access to the Property or Premises:
Backqround Checks. Individuals, groups, and companies requesting access to the Premises on
behalf of Tenant shall submit the name of the Tenant and other pertinent information regarding the
access request to Landlord's Public works Department as set forth below. Information must be
received sufficiently in advance of the visit to the Premises to allow for the completion of a
background check. The Landlord's Public Works Department will provide the information to the
Sheriff who will complete the background check. The Sheriff will return the results of the background
check to the Public Works Department for review and disposition. Information provided to the
Landlord concerning background checks will be maintained on file for one year.
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Procedures. All individuals must present appropriate state, federal, or company issued photo
identification before access is granted to the Premises. All individuals, regardless of the status of
the background check, will be escorted by Landlord personnel when working within the Facilities.
Individuals with approved background checks will be allowed to work within the Premises
unescorted, subject to escort requirements for work within Facility areas. Individuals without
approved background checks will be escorted while they are working in or around the Premises.
Tenant shall contact the Landlord's Utility Department 7:30 a.m. - 4:00 p.m. central time Monday
through Friday or the Sheriff at all other times to obtain access to the Premises.
Tenant Charqes for Access. In the event the Landlord's Public Works Department is required to
escort an individual, the Tenant will be billed by Landlord for costs and expenses incurred by the
Landlord in dispatching employees to the Premises. In the event the Landlord's personnel is
called out after regular City business hours or on City holidays, to provide access to the
Premises, charges for the callout will be billed to the Tenant.
27. Warranty of Title and Quiet Eniovment
Landlord warrants that: (i) Landlord owns the Property in fee simple and has the rights of access
thereto and the Property is free and clear of all liens, encumbrances and restrictions; (ii) Landlord has
full right to make and perform this Agreement; and (iii) Landlord covenants and agrees with Tenant
that upon Tenant paying the Rent and observing and performing all the terms, covenants and
conditions on Tenant's part to be observed and performed, Tenant may peacefully and quietly enjoy
the Premises.
This Lease was executed as of the date first set above.
LANDLORD: City of Chanhassen
By:
By:
TENANT:
By:
Greg Arvig, Nextera Wireless
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