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1o. Clear Wireless Cell Tower Lease CITY OF CHANIlASSEN 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 10 fill!'''''' MEMORANDUM TO: Todd Gerhardt, City Manager ^ () Laurie Hokkanen, Assistant City Manager~ December 14, 2009 ~ . Cell Tower Lease Agreement with Clear Wireless, LLC for Murray Hill Water Tower and Lake Lucy Water Tank FROM: DA TE: RE: PROPOSED MOTION The Chanhassen City Council approves the Water Tower Antennae Agreement with Clear Wireless, LLC for the purposes of installing WiMax antennae on the Murray Hill Water Tower and Lake Lucy Water Tank. Approval of this agreement requires a simple majority vote of the Council. BACKGROUND Staff has been contacted by representatives from Clear Wireless, LLC, www.c1earwire.com. regarding the installation of Wi Max internet antennae on the Murray Hill water tower and the Lake Lucy water tank. Both locations currently have cellular and other communications equipment located on them. The key points of the agreement are as follows: · The term of the lease is for five years, beginning on March 1, 2010 or the date construction begins. The lease can be extended for up to 20 years (four renewal terms of five years each). · Rent for the first term is $1,650/month. This amount increases by 3% annually. This rent structure is similar to other cell leases in the City. · Any taxes levied on the property due to the antennae will be paid by Clearwire. · Any expenses incurred by the City due to the antennae will be reimbursed by Clearwire. · The agreement may be terminated by the City if rent is not paid 15 days after written notice, if the water tower no longer becomes needed, or if a higher priority user (such as a City or public safety use) is needed. · Clearwire will pay an administrative fee of $5,500 on the commencement date. · Clearwire will also be responsible for review and inspection fees. · The site plans are attached but will be approved by the Planning Dept. prior to installation. The only change required from the attached is a requirement for a fence at the Murray Hill location. Chanhassen is a Community for Life - Providing for Today and Planning for Tomorrow Mr. Todd Gerhardt December 14,2009 Page 2 RECOMMENDA TION Staff recommends that the Chanhassen City Council approve the attached Water Tower Antennae Agreement with Clear Wireless, LLC for the purposes of installing WiMax antennae on the Murray Hill Water Tower and Lake Lucy Water Tank. This action requires a majority of the City Council for approval. ATTACHMENTS 1. Lease for Murray Hill Water Tower 2. Locater Map, Murray Hill Water Tower 3. Clearwire Installation Drawings, Murray Hill 4. Lease for Lake Lucy Water Tank 5. Locater Map, Lake Lucy Water Tank 6. Clearwire Installation Drawings, Lake Lucy C:\Docurnents and Settings\karene\Local Settings\Ternporary Internet Files\Content.Outlook\3VJPVKOI\Clearwire staff report. doc SITE NAME: SITE NUMBER: WATER TOWER ANTENNAE AGREEMENT THIS WATER TOWER ANTENNAE AGREEMENT ("Agreement") is made and entered into this 14th day of December, 2009 by and between the CITY OF CHANHASSEN, MINNESOTA, a Minnesota municipal corporation (hereinafter referred to as the "City"), and Clear Wireless, LLC, a Nevada limited liability company (hereinafter referred to as "Clearwire" or "Tenant"). The City is the fee owner of certain land located in Carver County, Minnesota, with a street address of 6434 Murray HilI Road, Chanhassen, Minnesota, legally described on Exhibit A attached hereto (hereinafter referred to as the "Property"). Located on the Property is a municipal water tower owned, operated and maintained by the City (hereinafter referred to as the "Water Tower"). Tenant desires to install, repair, replace, operate and maintain a single facility, consisting of up to 12 panel antennas, including all necessary wiring, cabling and conduits, used for the transmission and reception of telecommunication signals (hereinafter referred to as the "Antennae") and any related equipment (hereinafter referred to as the "Equipment") in accordance with the terms of this Agreement. 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 are hereby acknowledged, the parties agree as follows: 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 communications systems for the City of Chanhassen. Subject to the terms of this Agreement, the City authorizes Tenant's non-exclusive use of a certain portion of the Property, which is legally described on Exhibit A attached hereto, subject to any and all existing easement 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 Equipment. The locations on the Water Tower where Tenant is authorized to install the Antennae and the location of the ground space on the Property and access and utility easements are depicted on Exhibit B attached hereto (collectively, the "Premises"). Tenant shall provide for and be responsible for all utility services used by Tenant and the maintenance of the Equipment or Premises. Tenant shall be entitled to the exclusive use of the Antennae and Equipment locations during the Initial Term and during Renewal Terms. Term. The initial term ("Initial Term") of this Lease will be for five (5) years, commencing on the earlier of the date that Tenant starts construction on the Premises, or March 1,2010 whichever first occurs ("Commencement Date"), and will terminate at 11:59 p.m. on the date immediately preceding the fifth anniversary of the Commencement Date, unless sooner terminated as provided herein. Tenant shall have the right to extend the term of this Agreement for four (4) additional five (5) year terms (each, a "Renewal Term") on the same terms and conditions as set forth herein. This Agreement shall automatically be extended for each successive Renewal Term unless Tenant gives City written notice of its intention not to extend at least sixty (60) days prior to the expiration of the then-existing term. Rent and Compensation. Tenant agrees to pay as rent to City, monthly in advance beginning on the Commencement Date, an amount equal to one thousand six hundred fifty dollars ($1,650.00) ("Rent") for attaching up to twelve (12) antennas and twenty-four (24) lines of coaxial cable to the Water Tower. Tenant's first installment of Rent will be paid to City on or before the Commencement Date, and subsequent installments of Rent shall be paid in advance on or before the fifth day of each month. Payments for any partial months shall be prorated. During the Initial Term and any Renewal Terms, Rent will increase annually by three percent (3%) and such increases will be effective on each anniversary of the Commencement Date. On or before the commencement date, Tenant shall pay Commencement Fee of $5,500. Use. Tenant may use the Premises and the Water Tower solely for the purpose of constructing, installing, removing, replacing, repairing, maintaining, and operating the Antennae and Equipment, subject to such modifications and alterations as may result from changes or improvements in technology. Prior to Tenant installing, subsequently modifying, or removing the Antennae and the Equipment, it shall provide written notice to the City, along with copies ofthe plans and specifications ofthe work. The Tenant will be responsible for any inspection or review fees that the City incurs during such upgrades. The City shall have the right to approve the manner of installation and the location on the Water Tower where Tenant installs the Antennae, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant shall not install any subsequent antennae (beyond the original twelve panel antennas including all necessary wiring, cabling and conduits) without negotiating a written addendum of this Agreement, which addendum shall include an increase in the Rent. Except for the antennas, wiring, cabling and conduits depicted on Exhibit B, Tenant shall store all Equipment related to the Antennae in the Premises. City will not in any way be responsible, unless for acts of gross negligence and willful misconduct by the City, for the Antennae, the related Equipment, the Premises, or any personal property actually placed on the Property or in the Premises or installed on the Water Tower by Tenant. The Antennae and related Equipment shall remain the property of Tenant, subject to the terms of Paragraphs 7 and 8. Tenant, at all times during this Agreement, shall have access to the ground portion of the Premises in order to install, operate, and repair, replace and maintain Antennae and Equipment. Tenant shall have access to the Water Tower only with the approval of the City. Tenant 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 Tenant to have access to the Water Tower at some time other than the normal working hours ofthe City, the City may charge Tenant for reasonable expense, including employee wages that the City may incur in providing such access to Tenant. The City will be entitled to reimbursement from Tenant if City incurs any costs associated with providing Tenant access to Water Tower, Property or Premises except in those cases where cost is incidental to City obtaining access for its own purposes unrelated to Tenant's use of Antennae, Water Tower and Premises. 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 Tenant services where the interruption is due to an emergency or performance of maintenance and repairs on the Water Tower. Tenant acknowledges that the City has established the following construction hours: Monday-Friday 7 am to 9 pm, Saturday 9 am - 9 pm and no activity on Sunday. Tenant shall take all steps necessary to prevent any mechanics' or materialmen's liens from being placed on the Property as a result of Tenant's use of the Water Tower, Property and Premises, and specifically indemnifies the City from such liens. The color of the Antennae and any Equipment placed on the Water Tower shall match the color of the Water Tower. Tenant shall pay all personal and real property taxes assessed against the Antennae, related Equipment and/or Premises. If any such improvements constructed 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. The City represents and warrants to Tenant that Tenant shall enjoy ingress, egress, and access from an open and improved public road to the Property adequate to service the Premises, Antennae and the Equipment at all times during this Agreement and at no additional charge to Tenant. Any access easements shall terminate upon termination of this Agreement and Tenant agrees to execute any and all documents necessary to remove the easement from the Property. Within thirty (30) days after the completed installation, Tenant 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 Premises. Said drawings shall be accompanied by a complete and detailed inventory of all Equipment, personal property, and Antennae actually placed on the Property by Tenant. 5. Maintenance of Antennae; Modification. A. Tenant shall maintain the Antennae and Equipment in good condition at all times, at its sole cost and expense. Tenant shall conduct all repair, replacement and maintenance operations in accordance with applicable OSHA regulation or such other occupational and safety regulations pertaining to such operations. Every five (5) years from the commencement date of this Agreement, Tenant shall have the Antennae and Water Tower inspected by a Registered Civil Engineer and provides the City with a copy of the inspection report. If Tenant 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. Tenant 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 Tenant 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 my terminate this Agreement and retain any prepaid Rent. 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 Tenant would be liable without first giving Tenant written notice of the breach of its obligations under this Paragraph 5 and Tenant 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 Tenant 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 an 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 ofthe presence of the Antennae and/or the Equipment being located thereon shall be paid within 30 days by Tenant to the City upon receipt from the City by Tenant of the City's written notice of such additional cost, which notice shall state the reason(s) for the incurring of such costs and shall include a reasonable itemization of such costs. C. Tenant shall remove its Antennae facilities at Tenant 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 Tenant at least ninety (90) 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 Tenant's Antennae facilities, but shall notify Tenant 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 Tenant's Antennae facilities is interrupted, Tenant shall have the right to maintain and operate mobile cellular sites on wheels on the Property or, after approved 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 or the Equipment shall be made by Tenant until Tenant has submitted to the City a detailed proposal for the same, and the City has approved such proposal. Such approval by the City shall not be unreasonably withheld, delayed, or conditioned. The City may require that either or both of the studies required under Subparagraph lIE hereof be 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 Tenant. Utilities. Tenant 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. The City agrees to cooperate with Tenant in its efforts to connect the Antennae and Equipment to existing utility service at Tenant'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. Tenant shall have the right to install utilities, at Tenant'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 for use for a period up to thirty (30) days. The City shall not be liable, and Tenant waives any and all claims against the City, for any interruption of electrical or other utility services Property, Antennae or Equipment. Removal of Antennae and Equipment. Tenant shall remove the Antennae and all personal property and trade fixtures at its own cost and expense upon the expiration or earlier termination of this Agreement. Tenant shall, at its sole cost and expense, return the Water Tower and the Property to substantially the same condition they were in on the Commencement Date, normal wear and tear excepted. In the event Tenant fails to so remove any component of the Antennae, the Equipment, or both, or to return the Water Tower and the Property to the condition specified in this subsection within ninety (90) days of the expiration or termination of this Agreement, then the City shall have the right to remove the Antennae or Equipment at Tenant's sole cost and expense. If Tenant 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 Tenant until Tenant has reimbursed the City for all expenses related to removing the Antennae and the Equipment and returning to the Property and the Water Tower to the condition specified in this subsection. Waiver of City's Lien. City waives any lien rights it may have concerning the Tenant's facilities which are deemed Tenant's personal property and not fixtures, and Tenant has the rights to remove the same at any time without City's consent. City acknowledges that Tenant has entered into or may enter into a financing arrangement including promissory notes and financial and security agreements for the financing of Tenant's facilities (the "Collateral") with a third party financing entity (and may in the future enter into additional financing engagements with other financing 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 Tenant's operation of its Antennae or Equipment. Initial Study. Before obtaining a building permit, Tenant 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 Tenant 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 Agreement immediately and refund any prepaid Rent to Tenant. The City shall order such studies promptly upon its receipt of the application of Tenant for a building permit, 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 Tenant 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 as such right and shall include the refund of such prepaid rent. Future Development. Tenant understands and acknowledges that the City may utilize the Property for public use at some future date, and that the design and manner of such uses shall be in the sole discretion of the City. In the event City undertakes such use, then the City and Tenant agree to cooperate with one another as necessary to facilitate both parties' use ofthe Property. Damage to the Water Tower or to the Property. Tenant'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 Tenant, or those of its agents, representative, employees, contractors, or subcontractors, cause such damage or interference, Tenant will cure damage or interference within thirty (30) days after receipt of written notice or, if the default may not reasonably be cured within a 30-day period, Tenant must commence an action to cure the default within a 3D-day period and proceed with due diligence to fully cure the default. If the Tenant 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 Tenant. Casualty. If any portion ofthe Property, Water Tower or Antennae is damaged by any casualty and such damage materially and adversely affects Tenant's use ofthe Water Tower or Property, Tenant may give thirty (30) days' notice of its intention to terminate this Agreement, in which case the Agreement will terminate on the date specified in such notice and except as otherwise provided herein, neither party will have any further rights or obligations under this Agreement. Such notice must be given within fifteen (15) days of notice of the casualty. Quiet Enjoyment. Tenant, upon paying Rent, shall peaceably and quietly have, hold and enjoy the Premises 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 Tenant 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 Tenant from the Property. Insurance As long as the Agreement is in effect, Tenant 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 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. 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: 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). However, if the default may not be reasonably cured within a 60 day period, this Agreement may not be terminated if the defaulting party commences action to cure the default within such 60 day period and proceeds with due diligence to fully cure the default; b. by Tenant 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, Antennae, Equipment or the Water Tower as a transmission facility; c. by Tenant for cause if the Property is or becomes unacceptable for technological reasons under Tenant's design or engineering specifications for its Antennae or related Equipment; d. by the City if Tenant fails to tender the monthly Rent payment within fifteen (15) days of written notice from the City that Tenant is in default payment of Rent; e. by the City if the 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, if its City Council decides, for any reason, to discontinue use of the Water Tower for all purposes, in which event Tenant 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 Tenant 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. B. Notwithstanding anything to the contrary in this Agreement, in no event will either party be liable to the other party for, or indemnify the other party against, punitive, indirect, incidental, special or consequential damages, including, without limitation, loss of profits, income or business opportunities. C. If Tenant terminates this Lease pursuant to subsection 8.A.c, above, unless caused by the city's wrongful conduct, Tenant shall pay to City a termination fee equal to twelve (12) times the then current monthly rent in effct for early termination,; provided, however, that Tenant shall not be required to pay any termination fee if Tenant elects not to renew the term of this Agreement pursuant to Section 2, above. Interference. Upon paying the Rent as required herein, Tenant shall have the right to the non- exclusive use of the Water Tower and Property as permitted in this Agreement. City in no way guarantees to Tenant noninterference with Tenant'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 Tenant's transmission operations. Interference Caused By Antennae. Tenant'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 and emergency management agencies including law enforcement, fire, and ambulance services, that are not part of the City; and (3) other governmental agencies where use is not related to public safety or emergency management. Interference with Antennae Operations. 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 telecommunication frequency emissions, which are regulated solely by the federal government), the City may order Tenant to discontinue its operations. Tenant 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 Tenant, the City shall notify Tenant as soon as possible after its action and give its reason for taking the action. The City shall not be liable to Tenant or any other party for any interruption in Tenant's operation of its Antennae or Equipment, except as may be caused by the negligence or willful misconduct of the City, its employees, contractors 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, Tenant's sole remedy shall be to terminate this Agreement within its sole discretion. With Structure. Tenant 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 Tenant's cessation of action is material to Tenant's use ofthe Water Tower and Property and such cessation frustrates Tenant's use ofthe Water Tower and Property, within Tenant's sole discretion, Tenant shall have the immediate right to terminate this Agreement. With Higher Priority Users. If Tenant's Equipment causes impermissible interference with the parties identified in Paragraph 10 above or with pre-existing tenants, Tenant 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, Tenant 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 Tenant received City's written notice, City may at its option terminate this Agreement immediately. Interference Study - New Occupants. Upon written notice by City that is has a bona fide request from any other party to lease an area including or in close proximity to the Water Tower and Property, Tenant agrees to provide City, within twenty (20) days, the telecommunications 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 interference to Tenant. City shall require the new applicant to pay for such interference studies. Except for those 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. Said policy shall contain a clause that provides that the insurer will not cancel, non-renew, or reduce the coverage of the policy without first giving the City thirty (30) days' prior written notice. Tenant shall provide the City with a Certificate of Insurance for said policy with specifically details the conditions of the paragraph. Tenant shall also maintain fire and extended coverage insurance insuring Tenant's personal property for its full insurable value (subject to reasonable deductibles). Notwithstanding anything in this Agreement to the contrary, each party releases the other party from all liability , whether for negligence or otherwise, in connection with a loss covered by any first party property insurance policies which the releasing party carries with respect to the Property, including the Antennae and Lease Premises, but only to the extent that such loss is collected under such insurance policy(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. Condition of Property. Tenant acknowledges that the City makes no representations or warranties regarding the suitability of the Property or the Water Tower for Tenant'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. Condemnation. In the event the while 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, Tenant shall no be entitled to any portion of the reward paid for the taking and the City shall received full amount of such award. Tenant herby 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, Tenant 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 Tenant on account of any and all damage to Tenant's 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. 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 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 performance, or 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 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. Miscellaneous. 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. Severability: If any term of this Agreement is found to be unenforceable to invalid by a court of competent jurisdiction, such unenforceable or invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. Authority: Each party represents and warrants that it has full authority to enter into and to sign this Agreement Counterparts: The parties may sign this Agreement in counterparts. 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 Tenant. Assignment and Delegation: (a) By Tenant: 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 City, which will not be umeasonably withheld, conditioned or delayed; provided, however, that Tenant may assign its interest without City's consent to Tenant's 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 9 above. City may assign this Agreement upon written notice to Tenant, subject to the assignee assuming all of City's obligations herein, including but not limited to, those set forth in Paragraph 9 above. 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 entity, 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 obligation evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letter 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 The City may assign this Agreement provided said assignee will assume, recognize and also become responsible to Tenant for the performance of all said terms and conditions to be performed by such party under 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 7700 Market Boulevard Box 147 Chanhassen, MN 55317 ATTN: Todd Gerhardt, City Manager If to Tenant: Attn: Site Leasing 4400 Carillion Point Kirkland, W A 98033 Telephone: 425-216-7600 Fax: 425-216-7900 Email: Siteleasing@clearwire.com With a copy to: Attention: Legal Department 4400 Carillon Point Kirkland, W A 98033 Telephone: 425-216-7600 Fax: 425-216-7900 H. Tenant agrees to provide Tenant contact address and phone numbers updates at any time changes in contact information occur, as well as annually by January 15 of each year, upon written notice from the City. I. Estoppel Certificates: Each party agrees to furnish to the other, within ten (10) days after request, such truthful estoppels information as the other may reasonably request. J. Governing Law: This Agreement shall be construed in accordance with the laws of the State of Minnesota. K. 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. L. Memorandum of Lease. City agrees to cooperate with Tenant in executing any documents (including a Memorandum of Lease in the form annexed hereto as Exhibit D) necessary to protect Tenant's rights hereunder or Tenant's use ofthe Water Tower, Equipment or Premises. M. 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. N. W-9. City agrees to provide Tenant with a completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may be reasonably requested by Tenant. In the event the Property is transferred, the new landlord shall have a duty at the time of such transfer to provide Tenant with a completed IRS Form W-9, or its equivalent, and other related paper work to affect a transfer in Rent to the new landlord. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. CITY OF CHANHASSEN BY: Tom Furlong, Mayor AND Todd Gerhardt, City Manager Federal ID# 410885331 STATE OF MINNESOTA ) ss. COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this _ day of _ 2009, by Tom Furlong and Todd Gerhardt, 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. TENANT: Clear Wireless, LLC, a Nevada limited liability company BY: ST ATE OF MINNESOTA) ) ss. COUNTY OF CARVER ) The forgoing instrument was acknowledged before me this _ day of _ 2009, by ,of,a company, on behalf of the company. Notary Public DRAFTED BY: CAMBELL KNUTSON Professional Association 1380 Corporate Center Curve 317 Eagandale Office Center Eagan, MN 55121 Telephone: (651) 452-5000 RNK: sm Map Print Output Page 1 of 1 Carver County GIS Mapping Application Legend Cilrver Roads US Hilh"'l' ;I MNH~h"'l' ;I CWI Rood. County Rood. ;./ Township Rood. ;./ CCy Ro>l. ;./ _.Rood. Lakes Parcels Color 2008 c .""",~ Carve r County Map Created on: 12-4-2009 This map was created using Carver County's Geographic Information Systems (GIS), it is a compilation of information and data from various City, County, State, and Federal offices. This map is not a surveyed or legally recorded map and is intended to be used as a reference. 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J ~~ ~~ !f~ ow ~~ I~~ ifi~ .J"->- o"'~ ~~~ ozo: ,,-ww 0>-3: o:zo "-<>- Ul i:Oj' "'if :5>- .J< 0>- ~~ I' 125 lo~ g:C!), '" z ;0 ~ C> z t; X w 0: W.-, ~~ 0", ",< ZZ ~rD \' Z o ~ <( > W -1 UJb o:::~ w" s: 0;1 ~~ z w C/) C/) <( I Z <( I o ~I~IO:"'" f2~~ffi I ~~ni~ I~ w ~5~~ w b dOOQ ffw co I zO:::I-a::: i~ ~~~I ~~~~ d~ I g~~ ~~5~ m~ ~~~ ~~~~ ~~ ~ro2 ~~~~ a?~ ~ffi~ [0 L50 a::: a..CJ a.. a.. a.. g:dg:~ '" I i I , L__ - '''~rv ,vB. S'o'NN31NV 3~IMHV310 G3S0dOHd :!O H31N30 01 30NV1SIO 8) . "'~rv:; .ot~ . H3MOl H31VM ~NllStX3 ~o IHE:>13H ~t~ -'~ ~ (.:'l.~;.tt {~.;~~ l _ J1~J~ SITE NAME: SITE NUMBER: WATER TOWER ANTENNAE AGREEMENT THIS WATER TOWER ANTENNAE AGREEMENT ("Agreement") is made and entered into this 14th day of December, 2009 by and between the CITY OF CHANHASSEN, MINNESOTA, a Minnesota municipal corporation (hereinafter referred to as the "City"), and Clear Wireless, LLC, a Nevada limited liability company (hereinafter referred to as "Clearwire" or "Tenant"). The City is the fee owner of certain land located in Carver County, Minnesota, with a street address of 1152 Lake Lucy Rd., Chanhassen, Minnesota, legally described on Exhibit A attached hereto (hereinafter referred to as the "Property"). Located on the Property is a municipal water tower owned, operated and maintained by the City (hereinafter referred to as the "Water Tower"). Tenant desires to install, repair, replace, operate and maintain a single facility, consisting of up to 12 panel antennas, induding all necessary wiring, cabling and conduits, used for the transmission and reception of telecommunication signals (hereinafter referred to as the "Antennae") and any related equipment (hereinafter referred to as the "Equipment") in accordance with the terms of this Agreement. 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 are hereby acknowledged, the parties agree as follows: 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 communications systems for the City of Chanhassen. Subject to the terms of this Agreement, the City authorizes Tenant's non-exclusive use of a certain portion of the Property, which is legally described on Exhibit A attached hereto, subject to any and all existing easement 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 Equipment. The locations on the Water Tower where Tenant is authorized to install the Antennae and the location of the ground space on the Property and access and utility easements are depicted on Exhibit B attached hereto (collectively, the "Premises"). Tenant shall provide for and be responsible for all utility services used by Tenant and the maintenance of the Equipment or Premises. Tenant shall be entitled to the exclusive use of the Antennae and Equipment locations during the Initial Term and during Renewal Terms. Term. The initial term ("Initial Term") ofthis Lease will be for five (5) years, commencing on the earlier of the date that Tenant starts construction on the Premises, or March 1,2010 whichever first occurs ("Commencement Date"), and will terminate at 11:59 p.m. on the date immediately preceding the fifth anniversaryofthe Commencement Date, unless sooner terminated as provided herein. Tenant shall have the right to extend the term of this Agreement for four (4) additional five (5) year terms (each, a "Renewal Term") on the same terms and conditions as set forth herein. This Agreement shall automatically be extended for each successive Renewal Term unless Tenant gives City written notice of its intention not to extend at least sixty (60) days prior to the expiration of the then-existing term. Rent and Compensation. Tenant agrees to pay as rent to City, monthly in advance beginning on the Commencement Date, an amount equal to one thousand six hundred fifty dollars ($1,650.00) ("Rent") for attaching up to twelve (12) antennas and twenty-four (24) lines of coaxial cable to the Water Tower. Tenant's first installment of Rent will be paid to City on or before the Commencement Date, and subsequent installments of Rent shall be paid in advance on or before the fifth day of each month. Payments for any partial months shall be prorated. During the Initial Term and any Renewal Terms, Rent will increase annually by three percent (3%) and such increases will be effective on each anniversary of the Commencement Date. On or before the commencement date, Tenant shall pay Commencement Fee of $5,500. Use. Tenant may use the Premises and the Water Tower solely for the purpose of constructing, installing, removing, replacing, repairing, maintaining, and operating the Antennae and Equipment, subject to such modifications and alterations as may result from changes or improvements in technology. Prior to Tenant 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 Tenant will be responsible for any inspection or review fees that the City incurs during such upgrades. The City shall have the right to approve the manner of installation and the location on the Water Tower where Tenant installs the Antennae, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant shall not install any subsequent antennae (beyond the original twelve panel antennas including all necessary wiring, cabling and conduits) without negotiating a written addendum of this Agreement, which addendum shall include an increase in the Rent. Except for the antennas, wiring, cabling and conduits depicted on Exhibit B, Tenant shall store all Equipment related to the Antennae in the Premises. City will not in any way be responsible, unless for acts of gross negligence and willful misconduct by the City, for the Antennae, the related Equipment, the Premises, or any personal property actually placed on the Property or in the Premises or installed on the Water Tower by Tenant. The Antennae and related Equipment shall remain the property of Tenant, subject to the terms of Paragraphs 7 and 8. Tenant, at all times during this Agreement, shall have access to the ground portion of the Premises in order to install, operate, and repair, replace and maintain Antennae and Equipment. Tenant shall have access to the Water Tower only with the approval of the City. Tenant 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 Tenant to have access to the Water Tower at some time other than the normal working hours of the City, the City may charge Tenant for reasonable expense, including employee wages that the City may incur in providing such access to Tenant. The City will be entitled to reimbursement from Tenant if City incurs any costs associated with providing Tenant access to Water Tower, Property or Premises except in those cases where cost is incidental to City obtaining access for its own purposes unrelated to Tenant's use of Antennae, Water Tower and Premises. 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 Tenant services where the interruption is due to an emergency or performance of maintenance and repairs on the Water Tower. Tenant acknowledges that the City has established the following construction hours: Monday-Friday 7 am to 9 pm, Saturday 9 am - 9 pm and no activity on Sunday. Tenant shall take all steps necessary to prevent any mechanics' or materialmen's liens from being placed on the Property as a result of Tenant's use of the Water Tower, Property and Premises, and specifically indemnifies the City from such liens. The color of the Antennae and any Equipment placed on the Water Tower shall match the color of the Water Tower. Tenant shall pay all personal and real property taxes assessed against the Antennae, related Equipment and/or Premises. If any such improvements constructed 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. The City represents and warrants to Tenant that Tenant shall enjoy ingress, egress, and access from an open and improved public road to the Property adequate to service the Premises, Antennae and the Equipment at all times during this Agreement and at no additional charge to Tenant. Any access easements shall terminate upon termination of this Agreement and Tenant agrees to execute any and all documents necessary to remove the easement from the Property. Within thirty (30) days after the completed installation, Tenant 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 Premises. Said drawings shall be accompanied by a complete and detailed inventory of all Equipment, personal property, and Antennae actually placed on the Property by Tenant. 5. Maintenance of Antennae; Modification. A. Tenant shall maintain the Antennae and Equipment in good condition at all times, at its sole cost and expense. Tenant shall conduct all repair, replacement and maintenance operations in accordance with applicable OSHA regulation or such other occupational and safety regulations pertaining to such operations. Every five (5) years from the commencement date of this Agreement, Tenant shall have the Antennae and Water Tower inspected by a Registered Civil Engineer and provides the City with a copy of the inspection report. If Tenant 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. Tenant 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 Tenant 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 my terminate this Agreement and retain any prepaid Rent. 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 Tenant would be liable without first giving Tenant written notice of the breach of its obligations under this Paragraph 5 and Tenant 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 Tenant creates an immediate threat of damage or physical injury to persons or property (as determined in the reasonable discretion ofthe City.) These remedies are nonexclusive, and the City expressly reserves its rights to pursue an 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 within 30 days by Tenant to the City upon receipt from the City by Tenant of the City's written notice of such additional cost, which notice shall state the reason(s) for the incurring of such costs and shall include a reasonable itemization of such costs. C. Tenant shall remove its Antennae facilities at Tenant 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 Tenant at least ninety (90) 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 Tenant's Antennae facilities, but shall notify Tenant 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 Tenant's Antennae facilities is interrupted, Tenant shall have the right to maintain and operate mobile cellular sites on wheels on the Property or, after approved 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 or the Equipment shall be made by Tenant until Tenant has submitted to the City a detailed proposal for the same, and the City has approved such proposal. Such approval by the City shall not be unreasonably withheld, delayed, or conditioned. The City may require that either or both of the studies required under Subparagraph liE hereof be 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 Tenant. Utilities. Tenant 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. The City agrees to cooperate with Tenant in its efforts to connect the Antennae and Equipment to existing utility service at Tenant'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. Tenant shall have the right to install utilities, at Tenant'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 for use for a period up to thirty (30) days. The City shall not be liable, and Tenant waives any and all claims against the City, for any interruption of electrical or other utility services Property, Antennae or Equipment. Removal of Antennae and Equipment. Tenant shall remove the Antennae and all personal property and trade fixtures at its own cost and expense upon the expiration or earlier termination of this Agreement. Tenant shall, at its sole cost and expense, return the Water Tower and the Property to substantially the same condition they were in on the Commencement Date, normal wear and tear excepted. In the event Tenant fails to so remove any component of the Antennae, the Equipment, or both, or to return the Water Tower and the Property to the condition specified in this subsection within ninety (90) days of the expiration or termination of this Agreement, then the City shall have the right to remove the Antennae or Equipment at Tenant's sole cost and expense. If Tenant 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 Tenant until Tenant has reimbursed the City for all expenses related to removing the Antennae and the Equipment and returning to the Property and the Water Tower to the condition specified in this subsection. Waiver of City's Lien. City waives any lien rights it may have concerning the Tenant's facilities which are deemed Tenant's personal property and not fixtures, and Tenant has the rights to remove the same at any time without City's consent. City acknowledges that Tenant has entered into or may enter into a financing arrangement including promissory notes and financial and security agreements for the financing of Tenant's facilities (the "Collateral") with a third party financing entity (and may in the future enter into additional financing engagements 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. 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: 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). However, if the default may not be reasonably cured within a 60 day period, this Agreement may not be terminated if the defaulting party commences action to cure the default within such 60 day period and proceeds with due diligence to fully cure the default; b. by Tenant 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, Antennae, Equipment or the Water Tower as a transmission facility; c. by Tenant for cause if the Property is or becomes unacceptable for technological reasons under Tenant's design or engineering specifications for its Antennae or related Equipment; d. by the City if Tenant fails to tender the monthly Rent payment within fifteen (15) days of written notice from the City that Tenant is in default payment of Rent; e. by the City if the 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, if its City Council decides, for any reason, to discontinue use of the Water Tower for all purposes, in which event Tenant shall not be entitled to compensation in any form for any reason as a result ofthe City's exercising its rights under this subparagraph; g. by Tenant 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. B. Notwithstanding anything to the contrary in this Agreement, in no event will either party be liable to the other party for, or indemnify the other party against, punitive, indirect, incidental, special or consequential damages, including, without limitation, loss of profits, income or business opportunities. C. If Tenant terminates this Lease pursuant to subsection 8.A.c, above, unless caused by the city's wrongful conduct, Tenant shall pay to City a termination fee equal to twelve (12) times the then current monthly rent in effct for early termination,; provided, however, that Tenant shall not be required to pay any termination fee if Tenant elects not to renew the term of this Agreement pursuant to Section 2, above. Interference. Upon paying the Rent as required herein, Tenant shall have the right to the non- exclusive use of the Water Tower and Property as permitted in this Agreement. City in no way guarantees to Tenant noninterference with Tenant'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 Tenant's transmission operations. Interference Caused By Antennae. Tenant'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 and emergency management agencies including law enforcement, fire, and ambulance services, that are not part of the City; and (3) other governmental agencies where use is not related to public safety or emergency management. Interference with Antennae Operations. 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 telecommunication frequency emissions, which are regulated solely by the federal government), the City may order Tenant to discontinue its operations. Tenant 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 Tenant, the City shall notify Tenant as soon as possible after its action and give its reason for taking the action. The City shall not be liable to Tenant or any other party for any interruption in Tenant's operation of its Antennae or Equipment, except as may be caused by the negligence or willful misconduct of the City, its employees, contractors 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, Tenant's sole remedy shall be to terminate this Agreement within its sole discretion. With Structure. Tenant shall not interfere with City's use of the Water Tower or Property and agrees to cease all such actions which umeasonably 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 Tenant's cessation of action is material to Tenant's use of the Water Tower and Property and such cessation frustrates Tenant's use of the Water Tower and Property, within Tenant's sole discretion, Tenant shall have the immediate right to terminate this Agreement. With Higher Priority Users. If Tenant's Equipment causes impermissible interference with the parties identified in Paragraph 10 above or with pre-existing tenants, Tenant 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, Tenant 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 Tenant received City's written notice, City may at its option terminate this Agreement immediately. Interference Study - New Occupants. Upon written notice by City that is has a bona fide request from any other party to lease an area including or in close proximity to the Water Tower and Property, Tenant agrees to provide City, within twenty (20) days, the telecommunications 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 interference to Tenant. 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 Tenant's operation of its Antennae or Equipment. Initial Study. Before obtaining a building permit, Tenant 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 Tenant 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 Agreement immediately and refund any prepaid Rent to Tenant. The City shall order such studies promptly upon its receipt of the application of Tenant for a building permit, 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 Tenant 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 as such right and shall include the refund of such prepaid rent. Future Development. Tenant understands and acknowledges that the City may utilize the Property for public use at some future date, and that the design and manner of such uses shall be in the sole discretion of the City. In the event City undertakes such use, then the City and Tenant agree to cooperate with one another as necessary to facilitate both parties' use of the Property. Damage to the Water Tower or to the Property. Tenant'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 Tenant, or those of its agents, representative, employees, contractors, or subcontractors, cause such damage or interference, Tenant will cure damage or interference within thirty (30) days after receipt of written notice or, if the default may not reasonably be cured within a 30-day period, Tenant must commence an action to cure the default within a 30-day period and proceed with due diligence to fully cure the default. If the Tenant 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 Tenant. Casualty. If any portion of the Property, Water Tower or Antennae is damaged by any casualty and such damage materially and adversely affects Tenant's use of the Water Tower or Property, Tenant may give thirty (30) days' notice of its intention to terminate this Agreement, in which case the Agreement will terminate on the date specified in such notice and except as otherwise provided herein, neither party will have any further rights or obligations under this Agreement. Such notice must be given within fifteen (15) days of notice ofthe casualty. Quiet Enjoyment. Tenant, upon paying Rent, shall peaceably and quietly have, hold and enjoy the Premises 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 Tenant 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 Tenant from the Property. Insurance As long as the Agreement is in effect, Tenant 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. Said policy shall contain a clause that provides that the insurer will not cancel, non-renew, or reduce the coverage of the policy without first giving the City thirty (30) days' prior written notice. Tenant shall provide the City with a Certificate of Insurance for said policy with specifically details the conditions of the paragraph. Tenant shall also maintain fire and extended coverage insurance insuring Tenant's personal property for its full insurable value (subject to reasonable deductibles). Notwithstanding anything in this Agreement to the contrary, each party releases the other party from all liability, whether for negligence or otherwise, in connection with a loss covered by any first party property insurance policies which the releasing party carries with respect to the Property, including the Antennae and Lease Premises, but only to the extent that such loss is collected under such insurance policy(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. Condition of Property. Tenant acknowledges that the City makes no representations or warranties regarding the suitability of the Property or the Water Tower for Tenant'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. Condemnation. In the event the while 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, Tenant shall no be entitled to any portion of the reward paid for the taking and the City shall received full amount of such award. Tenant herby 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, Tenant 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 Tenant on account of any and all damage to Tenant's 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. 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 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 performance, or 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 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. Miscellaneous. 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. Severability: If any term of this Agreement is found to be unenforceable to invalid by a court of competent jurisdiction, such unenforceable or invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. Authority: Each party represents and warrants that it has full authority to enter into and to sign this Agreement Counterparts: The parties may sign this Agreement in counterparts. 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 Tenant. Assignment and Delegation: (a) By Tenant: 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 City, which will not be unreasonably withheld, conditioned or delayed; provided, however, that Tenant may assign its interest without City's consent to Tenant's 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 9 above. City may assign this Agreement upon written notice to Tenant, subject to the assignee assuming all of City's obligations herein, including but not limited to, those set forth in Paragraph 9 above. 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 entity, 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 obligation evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letter 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 The City may assign this Agreement provided said assignee will assume, recognize and also become responsible to Tenant for the performance of all said terms and conditions to be performed by such party under 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: Ifto City: City of Chanhassen 7700 Market Boulevard Box 147 Chanhassen, MN 55317 ATTN: Todd Gerhardt, City Manager If to Tenant: Attn: Site Leasing 4400 Carillion Point Kirkland, W A 98033 Telephone: 425-216-7600 Fax: 425-216-7900 Email: Siteleasing@clearwire.com With a copy to: Attention: Legal Department 4400 Carillon Point Kirkland, W A 98033 Telephone: 425-216-7600 Fax: 425-216-7900 H. Tenant agrees to provide Tenant contact address and phone numbers updates at any time changes in contact information occur, as well as annually by January 15 of each year, upon written notice from the City. 1. Estoppel Certificates: Each party agrees to furnish to the other, within ten (10) days after request, such truthful estoppels information as the other may reasonably request. J. Governing Law: This Agreement shall be construed in accordance with the laws of the State of Minnesota. K. 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. L. Memorandum of Lease. City agrees to cooperate with Tenant in executing any documents (including a Memorandum of Lease in the form annexed hereto as Exhibit D) necessary to protect Tenant's rights hereunder or Tenant's use of the Water Tower, Equipment or Premises. M. 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. N. W-9. City agrees to provide Tenant with a completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may be reasonably requested by Tenant. In the event the Property is transferred, the new landlord shall have a duty at the time of such transfer to provide Tenant with a completed IRS Form W-9, or its equivalent, and other related paper work to affect a transfer in Rent to the new landlord. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. CITY OF CHANHASSEN BY: Tom Furlong, Mayor AND Todd Gerhardt, City Manager Federal ID# 410885331 ST ATE OF MINNESOTA) ) ss. COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this _ day of _ 2009, by Tom Furlong and Todd Gerhardt, 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. TENANT: Clear Wireless, LLC, a Nevada limited liability company BY: STATE OF MINNESOTA) ) ss. COUNTY OF CARVER ) The forgoing instrument was acknowledged before me this _ day of _ 2009, by ,of,a company, on behalf of the company. Notary Public DRAFTED BY: CAMBELL KNUTSON Professional Association 1380 Corporate Center Curve 317 Eagandale Office Center Eagan, MN 55121 Telephone: (651) 452-5000 RNK: srn Map Print Output Page 1 of 1 Carver County GIS Mapping Application Legend CaNer Roads USII,h'.'l" II UN II,h""" II CWI Roods C01i.ty Roods tI T...."" Roods tI Cil Roods tI POOl. Roods Lakes c ~ Carver County Map Created on: 12-4-2009 Parcels Co/or 2008 This map was created using Carver County's Geographic Information Systems (GIS), it is a compilation of information and data from various City, County, State, and Federal offices. This map is not a surveyed or legally recorded map and is intended to be used as a reference. 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