1c Antenna Agreement SprintC YOF
CHANHASSEN
690 City Center Drive
PO Box 147
Chanhassen, Minnesota 55317
Phone
952. 937.1900
Gen~'al Fax
952.937.5739
[Engineering Department Fax
952.937.9152
Building Department Fax
952.934.2524
Web Site
www. ci. cha,bassen, mn. us
TO:
FROM:
DATE:
Mayor and City Council
Todd Gerhardt, Acting City Manage
July 3, 2001
SUB J:
Site Antenna Agreement with Sprint
Attached for the City Council's consideration is a Site Antenna Agreement with
Sprint Spectrum, LP (Attachment//1). Sprint is requesting to locate 12 panel
antennas at 1152 Lake Lucy Road (Lake Lucy Water Reservoir--see
Attachment #2). The following is a summary of the terms and conditions of the
proposed lease:
Term: Initial Term--5 years
Rent:
$66,000 up front ($1,100/month x 60 months), plus an
administrative fee of $5,000 after one year from the
execution of the lease.
Permitted Use:
Transmission and reception of PCS telephone and radio
communication signals.
Renewal:
The tenant has the right to extend this lease for four (4)
additional 5-year terms and the annual rent shall increase
by 3% each year.
UtiliZes:
The tenant will pay all utilities and taxes if charged.
RECOMMENDATION
Staff recommends approval of the Antenna Agreement with sPrint Spectrum,
LP to locate 12 panel antennas and cabinets/equipment at 1152 Lake Lucy Road
(Lake Lucy Water Reservoir).
ATTACHMENTS
1. Lease Agreement
2. Site Plan
g:~admin\tgXSprintAntenna2001 .doc
City of Cha,hasse,z A Wvw/,g cammum~, wi'#] £kan /akes, qtM/O, schoo/s, a charming downtown, thriving businesses, and beautifid parks. A w'eat p/ace to live, work, and play.
Company Name Location Type Rent Amount
Sprint Spectrum LP
8175 Hazeltine Blvd.
(Arboretum Business
Park Water Tower)
October 18, 2000
Water Tower Antenna
Lease
Land Lease
Water Tower Antenna
Lease
Water Tower Antenna
Lease
US West Wireless
Bandimere Park
August 9, 2000
US West New Vector
Group, Inc.
West 76th Street
Water Tower (near
downtown)
June 25, 1997
Nextel West
Corporation
West 76th Street
Water Tower (near
downtown)
November 24, 1997
University of MN
Murray Hill Water
Tower
August, 2000
Antenna Lease for
GPS Testing
*The $65,000 includes a $5,000 administrative fee.
· $65,000 cash
up front for
first 5 years*
· After 5 years
$1500 per
month plus 3%
for each year
after
· $53,000 cash
up front
· After 5 years it
becomes $900
month to
month with
2.5% increase
each year
· $1500 per
month first 5
years, $1380
per month
second 5 years
and $1587 per
month third 5
years
· $1200 first 5
years, $1380
second 5
years, $1587
third 5 years,
and $1825
fourth 5 years
· No charge
g:Xadmin~tg~antenna leases.doc
SITE NAME: LAKE LUCY WATER TOWER
SITE NUMBER: MS54XC752B
WATER TOWER
ANTENNAE AGREEMENT
THIS AGREEMENT is made and entered into this day of ,2001, by and
between the CITY OF CHANHASSEN, MINNESOTA, a Minnesota municipal Corporation
(hereinafter refereed to as the "City"), and SPRINT SPECTRUM L.P., a Delaware limited partnership
(hereinafter referred to as "COMMUNICATIONS COMPANY").
RECITALS
A. The City is the fee owner of certain land located in Carver County, Minnesota, with a
street address of 1152 Lake Lucy Road, Chanhassen, Minnesota, legally described on Exhibit A
attached hereto (hereinafter referred to as the "Property").
B. Located on the Property is a municipal water tower owned, operated and maintained by
the City (hereinafter referred to as the "Water Tower").
C. COMMUNICATIONS COMPANY desires to install, operate and maintain a single_
facility, consisting of 12 panel antennas, including all necessary wiring, cabling and conduits, used for
the transmission and reception of radio communication signals (hereinafter referred to as the
"Antennae") in such frequencies as may be assigned by the Federal Communication Commission and
to provide for the storage of related equipment (hereinafter referred to as the "Equipment") in
accordance with the terms of this Agreement.
D. The parties desire to enter into this Agreement relating to the use of the Water Tower.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and for other good, valuable
and fair consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows;
1. Authorization to Use Water Tower Source. The primary purpose of the City's ownership
of the Property is to: (a) operate and maintain a municipal water tower so as to provide water service
to residents of Chanhassen; and (b) to provide governmentally related communication systems for the
City of Chanhassen. Subject to the terms of this Agreement, the City authorizes
COMMUNICATIONS COMPANY's non-exclusive use of a certain portion of the Property, which is
legally described on Exhibit A attached hereto, subject to any and all existing easements and
restrictions not inconsistent with the rights granted hereunder for the purposes described in Paragraph 4
of this Agreement, including the installation, operation, and maintenance of the Antennae and the
storage of the Equipment. The location on the Water Tower where COMMUNICATIONS
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COMPANY is authorized to install the Antennae and the location of the Ground Lease Area on the
Property and access and utility easements are depicted on Exhibit B attached hereto, (collectively, the
"Premises").
2. Term. The term of this Agreement shall begin on August 1, 2001 or the date
COMMUNICATIONS COMPANY begins construction on the site, whichever first occurs, and end at
midnight on July 31, 2006 ("Initial Term"), COMMUNICATIONS COMPANY shall have the right to
extend the Initial Term of this Agreement for four (4) additional five (5) year terms ("Renewal Term")
on the same terms and conditions as set forth herein. This Agreement shall automatically be extended
for each successive Renewal Term unless COMMUNICATIONS COMPANY gives City written
notice of its intention not to extend at least sixty (60) days prior to the expiration of the then-existing
term.
3. Rent and Compensation.
A. On or before the Commencement Date Operator shall pay City, as a fee for the
Initial Term, the sum of Sixty-six Thousand and no/100 Dollars ($66,000) in a lump sum payment.
B. Upon commencement of the sixth year (the first year of the Renewal Term), the
annual fee shall be Nineteen Thousand Eight Hundred and no/100 Dollars ($19,800), and thereafter for
the duration of this Agreement the annual fee shall increase by three percent (3%) each year.
C. Ground Lease Area. Exhibit B depicts the size, location and configuration of the
Equipment on the Property. The ground space Occupied by the Equipment shall be known as the
"Leased Premises" and is depicted on Exhibit B. COMMUNICATIONS COMPANY shall provide for
and be responsible for all utility services used by COMMUNICATIONS COMPANY and the
maintenance of the Equipment or Ground Lease Area or Leased Premises. COMMUNICATIONS
COMPANY shall be entitled to the exclusive use of the Antennae locations, Equipment and Leased
Premises during the Initial Term and during Renewal Terms.
D. One year from the execution of this Lease, COMMUNICATIONS COMPANY
agrees to pay to the City an administrative fee of Five Thousand Five Hundred and no/100 Dollars
($5,500).
4. Use.
A. COMMUNICATIONS COMPANY may use the Property and the Water Tower
solely for the purpose of constructing, installing, removing, replacing, maintaining, and operating the
Antennae, subject to such modifications and alterations as may result from changes or improvements in
technology. Prior to COMMUNICATIONS COMPANY installing, subsequently modifying, or
removing the Antennae and the Equipment, it shall provide written notice to the City, along with
copies of the plans and specifications of the work. The City shall have the right to approve the manner
of installation and the location on the Water Tower where COMMUNICATIONS COMPANY installs
the Antennae, which approval shall not be unreasonably withheld or delayed. COMMUNICATIONS
COMPANY shall not install any subsequent antennae (beyond the original twelve panel antennas
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including all necessary wiring, cabling and conduits ) without negotiating a written addendum to this
Agreement, which addendum shall include an increase in the annual rental fee.
B. Except for in use wiring, cabling and conduits depicted on Exhibit B,
COMMUNICATIONS COMPANY shall store all Equipment related to the Antennae in the Leased
Premises.
C. City will not in any way be responsible for the Antennae, the related Equipment,
the Leased Premises, or any personal property actually placed on the Property or in the Leased
Premises or installed on the Water Tower by COMMUNICATIONS COMPANY.
D. The Antennae and the related Equipment shall remain the property of
COMMUNICATIONS COMPANY, subject to the terms of Paragraphs 7 and 8.
E. COMMUNICATIONS COMPANY, at all times during this Agreement, shall
have access to the ground portion of the Property in order to install, operate, and maintain Antennae
and Equipment. COMMUNICATIONS COMPANY shall have access to the Water Tower only with
the approval of the City. COMMUNICATIONS COMPANY shall request access to the Water Tower
at least twenty-four (24) hours in advance except in emergency, and City's approval thereof shall not be
unreasonably withheld, delayed, or conditioned. In the event that it is necessary for
COMMUNICATIONS COMPANY to have access to the Water Tower at some time other than the
normal working hours of the City, the City may charge COMMUNICATIONS COMPANY for
reasonable expense, including employee wages, that the City may incur in providing such access to
COMMUNICATIONS COMPANY. The City will be entitled to reimbursement from .
COMMUNICATIONS COMPANY if City incurs any costs associated with providing
COMMUNICATIONS COMPANY access to Water Tower, Property or Leased Premises except in
those cases where cost is incidental to City obtaining access for its own purposes unrelated to
COMMUNICATIONS COMPANY's use of Antennae, Water Tower and Leased 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 COMMUNICATIONS COMPANY services
where the interruption is due to an emergency or performance of maintenance and repairs on the Water
Tower.
F. COMMUNICATIONS COMPANY shall take all steps necessary to prevent
any mechanics' or materialmen's liens from being placed on the Property as a result of
COMMUNICATIONS COMPANY's use of the Water Tower, Property and Leased Premises,
and specifically indemnifies the City from such liens.
G. The color of the Antennae and any Equipment placed on the Water Tower
shall match the color of the Water Tower.
H. COMMUNICATIONS COMPANY shall pay all personal and real property
taxes assessed against the Antennae, related Equipment and/or Leased Premises. If any such
improvements constructed on the Property should cause part of the Property to be taxed for real
estate purposes, COMMUNICATIONS COMPANY agrees to timely pay its pro rata sham, of
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such taxes. COMMUNICATIONS COMPANY pro rata share of such taxes shall be calculated
by a percentage, such percentage shall be based upon COMMUNICATIONS COMPANY
proportionate share of the total rent paid to City by all tenants on the Property that are also
required to pay such taxes. It shall be the liability of COMMUNICATIONS COMPANY to pay
such property taxes.
I. The City represents and warrants to COMMUNICATIONS COMPANY that
COMMUNICATIONS COMPANY shall enjoy ingress, egress, and access from an open and
improved public road to the Property adequate to service the Property and the Equipment at all
times during this Agreement and at no additional charge to COMMUNICATIONS
COMPANY. Any access easements rented to COMMUNICATIONS COMPANY shall
terminate upon termination of this Water Tower Antennae Agreement and
COMMUNICATIONS COMPANY agrees to execute any and all documents necessary to
remove the easement from the Property.
J. Within thirty (30) days after the completed installation,
COMMUNICATIONS COMPANY shall provide the City with record drawings of the
Antennae, Equipment, and improvements installed on the Property, which shows the actual
location of all Antennae, Equipment, and Leased Premises. Said drawings shall be
accompanied by a complete and detailed inventory of all Equipment, personal property, and
Antennae actually placed on the Property.
5. Maintenance of Antennaei Modification.
A. COMMUNICATIONS COMPANY shall maintain the Antennae and
Equipment in good condition at all times, at its sole cost and expense. COMMUNICATIONS
COMPANY shall conduct all repair, replacement and maintenance operations in accordance
with applicable OSHA regulations or such other occupational and safety regulations pertaining
to such operations. Every five (5) years from the commencement date of this Agreement,
COMMUNICATIONS COMPANY shall have the Antennae and Water Tower inspected by a
Registered Civil Engineer and provide the City with a copy of the inspection report. If
COMMUNICATIONS COMPANY fails to do so, and such failure creates a risk of damage or
injury to persons or property (as determined in the reasonable discretion of the City), the City
may take such steps as it determines to be necessary to protect persons or property; including
removal of the Antennae and the Equipment. COMMUNICATIONS COMPANY shall
reimburse the City for any costs incurred in connection with assuring compliance with the
provisions of this paragraph; including any costs of restor/ng the Water Tower and the Property
to their original condition. If COMMUNICATIONS COMPANY fails to pay the City for such
costs within thirty (30) days of a demand by the City for payment, the City at its election may
terminate this Agreement and retain the total payment of the current years 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 COMMUNICATIONS
COMPANY would be liable without first giving COMMUNICATIONS COMPANY written
notice of the breach of its obligations under this Paragraph 5 and COMMUNICATIONS
COMPANY fails to cure such breach within thirty (30) days of its receipt of such notice;
provided, however, that such cure per/od shall not be required in the event that the breach by
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COMMUNICATIONS COMPANY creates an immediate threat of damage or physical injury to
persons or property (as determined in the reasonable discretion of the City). These remedies are
nonexclusive, and the City expressly reserves its rights to pursue any available legal or
equitable remedies.
B. Any additional expense of repainting, repairing, or maintaining the Property
or the Water Tower reasonably incurred by the City as a direct consequence of the presence of
the Antennae and/or the Equipment being located thereon shall be paid within 30 days by
COMMUNICATIONS COMPANY to the City upon receipt from the City by
COMMUNICATIONS COMPANY 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. COMMUNICATIONS COMPANY shall remove its Antennae facilities at
COMMUNICATIONS COMPANY'S cost, upon reasonable notice to allow maintenance,
repair, and repainting, deemed appropriate in the reasonable discretion of the City. There may
be scheduled interruptions in use of the Antennae facilities. Except in the case of an
emergency, City shall give COMMUNICATIONS COMPANY thirty (30) days' written notice
of repair, repainting, or restoration. In case of an emergency which means there is a threat to
the health or safety of the public, or damage to the Property, City may remove
COMMUNICATIONS COMPANY's Antennae facilities, but shall notify
COMMUNICATIONS COMPANY by telephone as soon as reasonably possible. An
"emergency" shall be deemed to exist only in those situations which constitute an immediate
threat to the health or safety of the public or immediate danger to the Property. In the event the
use of COMMUNICATIONS COMPANY's Antennae facilities is interrupted,
COMMUNICATIONS COMPANY shall have the right to maintain mobile cellular sites on
wheels on the Property or, after approval by City, on any land owned or controlled by City in
the immediate area of the Property.
D. No material alteration or addition to the Antennae or the Equipment shall be
made by COMMUNICATIONS COMPANY until COMMUNICATIONS COMPANY has
submitted to the City a detailed proposal for the same, and the City has approved such proposal.
The City may require that either or both of the studies required under Subparagraph 11E 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 COMMUNICATIONS COMPANY. Such approval by the City shall not be
unreasonably withheld, delayed, or conditioned.
6. Utilities. COMMUNICATIONS COMPANY 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 COMMUNICATIONS
COMPANY in its efforts to connect the Antennae and Equipment to existing utility service at
COMMUNICATIONS COMPANY'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. COMMUNICATIONS COMPANY shall have the right to install utilities, at
COMMUNICATIONS COMPANY's expense, and to improve the present utilities on the
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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 ten (10) days. The City shall not be liable,
and COMMUNICATIONS COMPANY waives any and all claims against the City, for any
interruption of electrical or other utility services Property, Antennae or Equipment.
7. Removal of Antennae and Equipment.
A. COMMUNICATIONS COMPANY shall remove the Antennae and all
personal property and trade fixtures at its own cost and expense upon the expiration of the term
of this Agreement, any earlier termination of this Agreement as provided herein, or any
Renewal Term. COMMUNICATIONS COMPANY shall, at its sole cost and expense, return
the Water Tower and the Property to the condition it was in prior to the commencement of this
Agreement, normal wear and tear excepted. In the event COMMUNICATIONS COMPANY
fails to so remove any component of the Antennae, the Equipment, or both, or to return the
Water Tower and the Property to their original condition, within thirty (30) days of the
termination of this Agreement, then the City shall have the fight to remove the Antennae or
Equipment at COMMUNICATIONS COMPANY's sole cost and expense. If
COMMUNICATIONS COMPANY fails to reclaim the Antennae or Equipment with thirty (30)
days' notice from the date of removal by the City, said Antennae and Equipment shall without
further notice be deemed abandoned. No Antennae or Equipment will be released by the City
to COMMUNICATIONS COMPANY until COMMUNICATIONS COMPANY has
reimbursed the City for all expenses related to removing the Antennae and the Equipment and
returning the Property and the Water Tower to their original condition.
B. Waiver of City's Lien.
(1) City waives any lien fights it may have concerning the COMMUNICATIONS
COMPANY Facilities which are deemed COMMUNICATIONS COMPANY's personal
property and not fixtures, and COMMUNICATIONS COMPANY has the right to
remove the same at any time without City's consent.
(2) City acknowledges that COMMUNICATIONS COMPANY has entered into a
financing arrangement including promissory notes and financial and security agreements
for the financing of the COMMUNICATIONS COMPANY Facilities (the "Collateral")
with a third party financing entity (and may in the future enter into additional financing
arrangements with other financing entities). In connection therewith, City (i) consents
to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as
fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution,
foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and
that such Collateral may be removed at any time without recourse to legal proceedings.
8. Termination.
A. Except as otherwise provided herein, this Agreement may be terminated by
either party upon sixty (60) days' written notice to the other party, only as follows:
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(a) by either party upon default of any covenant or term hereof by the other
party, which default is not cured within sixty (60) days of receipt of written
notice of default to the other party (without, however, limiting any other rights
of the parties pursuant to any other provisions hereof). However, if the default
may not be reasonably cured within a 60 day period, this Lease 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 COMMUNICATIONS COMPANY for cause if it is unable to obtain or
maintain any license, permit, or other governmental approval necessary for the
construction and/or operation or use of the Property, equipment or the Water
Tower as a transmission facility;
(c) by COMMUNICATIONS COMPANY for cause if the Property is or
becomes unacceptable for technological reasons under COMMUNICATIONS
COMPANY's design or engineering specifications for its Antennae or related
Equipment;
(d) by the City If COMMUNICATIONS COMPANY fails to tender the monthly
rent payment within fifteen (15) business days of written notice from City that
COMMUNICATIONS COMPANY is in default payment of rent;
(e) by the City if it determines, after consultation with a licensed structural
engineer that the Water Tower is structurally unsound for use as a water tower,
for any reason including but not limited to considerations related to the age of
the structure, damage to or destruction of all or part of the Water Tower or the
Property from any source, or factors relating to the condition of the Property;
(f) by the City, if its City Council decides, for any reason, to discontinue use of
the Water Tower for all purposes, in which event COMMUNICATIONS
COMPANY shall not be entitled to compensation in any form for any reason as
a result of the City's exercising its rights under this subparagraph;
(g) by COMMUNICATIONS COMPANY if City causes electrical utility
services to be interrupted for a period of more than thirty (30) days; or
(h) If the City determines that a potential user with a higher priority as identified
under Paragraph 10 below cannot find another adequate location or the Antennae
and Equipment unreasonably interfere with another user with a higher priority,
regardless of whether or not such an interference was predicted in the initial
interference study that was a part of the application process.
B. If City terminates this Agreement other than as of right as provided in this
Agreement, or City causes interruption of the business of COMMUNICATIONS COMPANY
or for any other City breach of this Agreement, City's liability for damages to
COMMUNICATIONS COMPANY shall be limited to the actual and direct costs of Equipment
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removal, relocation or repair and shall specifically exclude any recovery for value of the
business of COMMUNICATIONS COMPANY as a going concern, future expectation of
profits, loss of business or profit or related damages to COMMUNICATIONS COMPANY as a
going concern, future expectation of profits or loss of business or profit.
C. If COMMUNICATIONS COMPANY terminates this Agreement other than
of right as provided in this Agreement, COMMUNICATIONS COMPANY shall pay tot he
City as liquidated damages for early termination, 150% of the annual rent for the year, unless
COMMUNICATIONS COMPANY terminates during the last year of any term under Paragraph
2, and COMMUNICATIONS COMPANY has paid the annual rent for that year.
9. Interference.
A. Upon paying the rent as required herein, COMMUNICATIONS COMPANY
shall have the fight to the non-exclusive use of the Water Tower and Property as permitted in
this Agreement. City in no way guarantees to COMMUNICATIONS COMPANY
noninterference with COMMUNICATIONS COMPANY's transmission operations, provided,
however, that in the event any other party except a high priority user requests permission to
place any type of additional antennae or transmission facility on the Property, the procedures of
Paragraph 11D shall govern to determine whether such antennae or transmission facility will
interfere with COMMUNICATIONS COMPANY'S transmission operations.
10. Interference Caused By Antennae. COMMUNICATIONS COMPANY's Equipment
shall be installed and operated in a manner which does not cause interference or otherwise
impair the quality of the communication services being rendered by the following higher
priority users: (1) City and (2) public safety agencies including law enforcement, fire, and
ambulance services, that are not part of the City; and (3) other governmental agencies where
use is not related to public safety.
11. Interference with Antennae Operations.
A. Temporary Interruptions of Service. If the City determines, in its reasonable
discretion, that continued operation of the Antennae would cause or contribute to an immediate
material threat to public health and/or safety (except for any issues associated with human
exposure to radio frequency emissions, which is regulated by the federal government)i the City
may order COMMUNICATIONS COMPANY to discontinue its operation.
COMMUNICATIONS COMPANY shall immediately comply with such an order. Service
shalllbe discontinued only for the period that the immediate threat exists. If the City does not
give prior notice to COMMUNICATIONS COMPANY, the City shall notify
COMMUNICATIONS COMPANY as soon as possible after its action and give its reason for
taking the action. The City shall not be liable to COMMUNICATIONS COMPANY or any
other party for any interruption in COMMUNICATIONS COMPANY's service or interference
with COMMUNICATIONS COMPANY's operation of its Antennae or Equipment, except as
may be caused by the negligence or willful misconduct of the City, its employees or agents. In
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any event, the City's liability shall not extend beyond the obligation to repair the cause of the
interruption or interference. If the discontinuance extends for a period greater than three (3)
business days, COMMUNICATIONS COMPANY's sole remedy shall be to terminate this
Agreement within its sole discretion.
B. With Structure. COMMUNICATIONS COMPANY shall not interfere with
City's use of the Water Tower or Property and agrees to cease all such actions which
unreasonably and materially interfere with City's use thereof no later than three (3) business
days after receipt of written notice of the interference from City. In the event that
COMMUNICATIONS COMPANY's cessation of action is material to COMMUNICATIONS
COMPANY's use of' the Water Tower and Property and such cessation frustrates
COMMUNICATIONS COMPANY's use of the Water Tower and Property, within
COMMUNICATIONS COMPANY's sole discretion, COMMUNICATIONS COMPANY shall
have the immediate right to terminate this Agreement.
C. With Higher Priority Users. If COMMUNICATIONS COMPANY's
Equipment causes impermissible interference with the parties identified in Paragraph 10 above
or with pre-existing tenants, COMMUNICATIONS COMPANY shall take all measures
necessary to correct and eliminate the interference. If the interference cannot be eliminated
within 48 hours after receiving City's written notice of the interference, COMMUNICATIONS
COMPANY shall immediately cease operating its Antennae and shall not reactivate operation,
except intermittent operation for the purpose of testing, until the interference has been
eliminated. If the interference cannot be eliminated within thirty (30) days after
COMMUNICATIONS COMPANY received City's written notice, City may at its option
terminate this Agreement immediately.
D. Interference Study - New Occupants. Upon written notice by City that it has
a bona fide request from any other party to lease an area including or in close proximity to the
Water Tower and Property, COMMUNICATIONS COMPANY agrees to provide City, within
twenty (20) days, the radio frequencies currently in operation or to be operated in the future of
each transmitter and receiver installed and operational on the Water Tower and Property at the
time of such request. City may then have an independent registered professional engineer of
City's choosing perform the necessary interference studies to determine if the new applicant's
frequencies will cause harmful radio interference to COMMUNICATIONS COMPANY. City
shall require the new applicant to pay for such interference studies. Except for those parties and
entities identified in Paragraph 10, City agrees that it will not grant a future lease in the Water
Tower and Property to any party if such party's use is reasonably anticipated to interfere with
COMMUNICATIONS COMPANY's operation of its Antennae or Equipment.
E. Initial Study. Before obtaining a building permit, COMMUNICATIONS
COMPANY must pay for the reasonable cost of (i) a radio frequency interference study carried
out by an independent and qualified professional selected by the City showing that the
COMMUNICATIONS COMPANY antennae use will not interfere with any existing
communication facilities; and (ii) an engineering study showing that the Water Tower is able to
support the Antennae and Equipment, as referred to in Exhibit B hereto, without prejudice to
the City's use of the Water Tower. If the study finds that there is a potential for interference
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that cannot be easily remedied or for prejudice to the Water Tower, the City may terminate this
Lease Agreement immediately and refund the initial rent to COMMUNICATIONS
COMPANY. The City shall order such studies promptly upon its receipt of the application of
COMMUNICATIONS COMPANY 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 fight
under this Subparagraph 11E, then the City shall give COMMUNICATIONS COMPANY
written notice of such termination within ten (10) days after receipt by the City of the last of
such studies, which notice shall specify the condition disclosed by either such study upon which
the City is basing the exercise of such fight and shall include the refund of such prepaid rent.
12. Future Development. COMMUNICATIONS COMPANY understands and
acknowledges that the City may utilize the Property for public use at some future date, and that
the design and manner of such use shall be in the sole discretion of the City. In the event that
City undertakes such use, then the City and COMMUNICATIONS COMPANY agree to
cooperate with one another as necessary to facilitate both parties use of the Property.
13. Indemnity.
A. General. COMMUNICATIONS COMPANY agrees to defend, indemnify
and hold harmless City and its elected officials, officers, employees, agents, and
representatives, from and against any and all claims, costs, losses, expenses, demands, actions
or causes of action, including reasonable attorneys' fees and other costs and expenses of
litigation, which may be asserted against or incurred by the City or for which the City may be
liable in the performance of this Agreement, except those which arise solely from the
negligence, willful misconduct, or other fault of the City. COMMUNICATIONS COMPANY
shall defend all claims arising out of the installation, operation, use, maintenance, repair,
removal, or presence of COMMUNICATION COMPANY's Antennae, Equipment and related
facilities on the Property.
B. COMMUNICATIONS COMPANY's Warranty. COMMUNICATIONS
COMPANY represents and warrants that its use of the Water Tower, Property and Equipment
will not generate and COMMUNICATIONS COMPANY will not store or dispose of on the
Property, nor transport to or over the Water Tower or Property, any Hazardous Materials in
violation of any law or regulation,. COMMUNICATIONS COMPANY will promptly inform
the City in writing if COMMUNICATIONS COMPANY becomes aware of the existence of
Hazardous Materials on the Property in violation of any law or regulation. The obligations of
this Paragraph 13 shall survive the expiration or other termination of this Agreement.
14. Damage to the Water Tower or to the Property. COMMUNICATIONS
COMPANY's installation, operation, maintenance, modification, and removal of the Antennae
and Equipment shall not damage or interfere in any way with the Property or the Water Tower
operations or related repair and maintenance activities. If the activities of
COMMUNICATIONS COMPANY, or those of its agents, representative, employees,
contractors, or subcontractors, cause such damage or interference, COMMUNICATIONS
COMPANY will cure damage or interference within thirty (30) days after receipt of written
notice or, if the default may not reasonably be cured within a 30-day period,
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COMMUNICATION COMPANY must commence an action to cure the default within a 30-
day period and proceed with due diligence to fully cure the default. If COMMUNICATIONS
COMPANY fails to cure such damage or interference, the City without further notice may take
such steps as it deems necessary to repair the damage or remedy the interference, at the sole
cost and expense of COMMUNICATIONS COMPANY.
15. Casualty. If any portion of the Property, Water Tower or Antennae is damaged by
any casualty and such damage materially and adversely affects COMMUNICATIONS
COMPANY's use of the Water Tower or Property, COMMUNICATIONS COMPANY may
give thirty (30) days' notice of its intention to terminate this Agreement. Such notice must be
given within fifteen (15) days of notice of the casualty
16. Quiet Enjoyment. COMMUNICATIONS COMPANY, upon paying the rent, shall
peaceably and quietly have, hold and enjoy the Property and Water Tower. If, as of the date of
execution of this Agreement or hereafter, there is any mortgage, or other encumbrance affecting
the City's Property or Water Tower, then City agrees to obtain from the holder of such
encumbrance an Agreement that COMMUNICATIONS COMPANY shall not be disturbed in
its possession, use and enjoyment of the Property and Water Tower. The City shall not cause or
permit any use of the Property which interferes with or impairs the quality of the
communication services being rendered by COMMUNICATIONS COMPANY from the
Property.
17. Insurance.
A. As long as this Agreement is in effect, COMMUNICATIONS COMPANY
shall maintain a general liability insurance policy that provides coverage for the Property and
the Water Tower from any damage to property or injuries to persons. Said insurance policy
shall provide coverage on an occurrence basis in an amount no less than Two Million Dollars
($2,000,000), and shall include contractual liability coverage to provide coverage for the
indemnification provision in Paragraph 13 of this Agreement. Said insurance policy shall list
the City as an additional insured party. Said policy shall contain a clause that provides that the
insurer will not cancel, non-renew, or materially change the policy without first giving the City
thirty (30) days prior written notice. COMMUNICATIONS COMPANY shall provide the City
with a Certificate of Insurance for said policy which specifically details the conditions of the
paragraph. COMMUNICATIONS COMPANY shall also maintain fire and extended coverage
insurance insuring COMMUNICATIONS COMPANY's personal property for its full insurable
value (subject to reasonable deductibles).
B. 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 policies which the releasing party carries with respect to the
Property, including the Antennae and Leased 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.
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C. COMMUNICATIONS COMPANY shall provide City with proof of Workers'
Compensation insurance covering all of COMMUNICATIONS COMPANY's employees and
agents who access the Property.
18. Condition of Property. COMMUNICATIONS COMPANY acknowledges that the
City makes no representations or warranties regarding the suitability of the Property or the
Water Tower for COMMUNICATIONS COMPANY's intended use under this Agreement.
City represents that the Water Tower and Property are in compliance with all building and other
life/safety codes.
19. Condemnation. In the event the whole of the Property is taken by eminent domain,
this Agreement shall terminate as of the date title to the Property vests in the condemning
authority. In the event a portion of the Property is taken by eminent domain, either party shall
have the right to terminate this Agreement as of said date of title transfer, by giving thirty (30)
days' written notice to the other party. In the event of any taking under the power of eminent
domain, COMMUNICATIONS COMPANY shall not be entitled to any portion of the reward
paid for the taking and the City shall receive full amount of such award.
COMMUNICATIONS COMPANY hereby expressly waives any right or claim to any portion
thereof. Although all damages, whether awarded as compensation for diminution in value of
the leasehold or to the fee of the prOperty, shall belong to City, COMMUNICATIONS
COMPANY shall have the right to claim and recover from the condemning authority, but not
from City, such compensation as may be separately awarded or recoverable by
COMMUNICATIONS COMPANY on account of any and all damage to
COMMUNICATIONS COMPANY'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.
20. Waiver. Except as otherwise provided in this Agreement, the rights and remedies of
the parties to this Agreement, whether provided by law or by this Agreement shall be
cumulative, and the exercise by either party of any one or more of such remedies shall not
preclude the exercise by it, at the same or different times, of any such remedies for the same
default or breach of any of its remedies for any other default or breach by the other party. No
waiver made by either such party with respect to the 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 other party or condition to its
own obligation beyond those expressly waived in writing and to the extent thereof, or a waiver
in any respect in regard to any other rights of the party making the waiver of any other
obligation of the other party. Delay by a party hereto in instituting or prosecuting any cause of
action or claim hereunder shall not be deemed a waiver of any rights hereunder.
21. Miscellaneous.
A. Whole Agreement: Modification: This Agreement contains all of the terms
and conditions relating to the rights granted herein, and replaces any oral agreements or other
negotiations between the parties relating to the Agreement. No modifications to this
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Agreement shall be valid unless and until they have been placed in writing and signed by both
parties hereto.
B. Severability: If any term of this Agreement is found to be unenforceable or
invalid by a court of competent jurisdiction, such unenforceability or invalidity shall not affect
the remaining terms of this Agreement, which shall continue in full force and effect.
C. Authority: Each party represents and warrants that it has full authority to
enter into and to sign this Agreement.
D. Counterparts: The parties may sign this Agreement in counterparts.
E. Binding Effect: The terms, conditions, representation and covenants of this
Agreement shall extend to and bind the heirs, personal representatives, successors and assigns
of the City and COMMUNICATIONS COMPANY.
F. Assignment and Delegation:
(a) By COMMUNICATIONS COMPANY:
COMMUNICATIONS COMPANY may not assign, or otherwise transfer all or
any part of its interest in this Agreement or in the Premises without the prior
written consent of City; provided, however, that COMMUNICATIONS
COMPANY may assign its interest to its parent company, any subsidiary or
affiliate of it or its parent company or to any successor-in-interest or entity
acquiring fifty-one percent (51%) or more of its stock or assets, subject to any
financing entity's interest, if any, in this Agreement as set forth in Paragraph 9
above. City may assign this Agreement upon written notice to
COMMUNICATIONS COMPANY, subject to the assignee assuming all of
City's obligations herein, including but not limited to, those set forth in
Paragraph 9 above. Notwithstanding anything to the contrary contained in this
Agreement, COMMUNICATIONS COMPANY 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
COMMUNICATIONS COMPANY (i) has obligations for borrowed money or
in respect of guaranties thereof, (ii) has obligations evidenced by bonds,
debentures, notes or similar instruments, or (iii) has obligations under or with
respect to letters of credit, bankers acceptances and similar facilities or in respect
of guaranties thereof.
(b) By the City: The City may freely assign its rights and delegate its duties
under this Agreement to a joint powers organization of which it is now a
member, or to any such organization to which it may become a member during
the term of this Agreement.
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G. Notices: Notices shall be in writing and personally delivered, sent by United
States mail, postage prepaid, certified or registered with return receipt requested or by any
nationally recognized overnight courier service to the following:
If to City:
City of Chanhassen
690 City Center Drive, Box: 147
Chanhassen, MN 55317
ATTN: Todd Gerhardt, Acting City Manager
If to COMMUNICATIONS COMPANY:
Sprint PCS
Site Development Director
MS54XC752B
9801 West Higgins Road #220
Rosemont, IL 60018
With a copy to:
Sprint Law Department
6391 Sprint Parkway
Mailstop KSOPHT0101-Z2020 -
Overland Park, KS 66251-2020
ATTN: Sprint PCS Real Estate Attorney
H. Estoppel Certificate: Each party agrees to furnish to the other, within ten
(10) days after request, such truthful estoppel, information as the other may reasonably request.
I. Governing Law: This Agreement shall be construed in accordance with the
laws of the State of Minnesota.
J. Broker. If either party is represented by a real estate broker in this
transaction, that party shall be fully responsible for any fee due such broker, and shall hold the
other party harmless from. any claims for commission by such broker.
K. Memorandum of Lease. City agrees to cooperate with
COMMUNICATIONS COMPANY in executing any documents (including a Memorandum of
Lease in the form annexed hereto as Exhibit D ) necessary to protect COMMUNICATIONS
COMPANY's rights hereunder or COMMUNICATIONS COMPANY's use of the Water
Tower, Property, Equipment or Leased Premises.
L. Headings. Headings at the beginning of paragraphs herein are for
convenience of reference, shall not be considered part of this Agreement and shall not influence
its construction.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
CITY OF CHANHASSEN
BY:
Linda C. Jansen, Mayor
Todd Gerhardt, Acting City Manager
Federal ID #: 410885331
COMMUNICATIONS COMPANY:
SPRINT SPECTRUM L.P.
BY:
Michael S. Romesburg
Site Development Director
STATE OF MINNESOTA
COUNTY OF CARVER
The foregoing instrument was acknowledged before me this day ,
2001 , by Linda C. Jansen and Todd Gerhardt, respectively the Mayor and Acting 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.
Notary Public
94758.02
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15
CHAN:SPR~T SPECTRUM L.P.
(Lake Lucy Water Tower Site #MS54XC752B)
STATE OF ILLINOIS
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2001, by Michael S. Romesburg, the Site Development Director of Sprint Spectrum L.P., a
Delaware limited partnership, on behalf of the partnership.
Notary Public
DRAFTED BY:
CAMPBEI J~ KNUTSON
Professional Association
1380 Corporate Center Curve
317 Eagandale Office Center
Eagan, MN 55121
Telephone: (651) 452-5000
RNK:sm
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CHAN:SPRrNT SPECTRUM L.P.
(Lake Lucy Water Tower Site #MS54XC752B)
CITY OF CHANHASSEN
EXHIBIT A
to
WATER TOWER ANTENNAE AGREEMENT
(Legal Description)
Pursuant to that certain Water Tower Antennae Agreement between the City of
Chanhassen as "City" and Sprint Spectrum L.P., a Delaware limited partnership, as
"COMMUNICATIONS COMPANY"., is leasing from City a certain portion of the real
property owned by the City (the "Property"), which is legally described as follows:
Part of Lot 7 of Vineland Addition to the City of Chanhassen described as follows:
Commencing at the Southwest comer of Lot 7, thence North 76.37 feet to a point on the
Southeasterly line of Peaceful Lane; thence North 36 degrees East along the Southeasterly
line 174.79 feet; thence South 87 degrees East 294.35 feet; thence South 1 degree West
220.04 feet to the Southerly line of Lot 7; thence South 87 degrees West along the South
line of Lot 7 397.82 feet to the point of beginning, comprising of 1.81 acres, more or less.
(Property ID # 02-116-023)
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(Lake Lucy Water Tower Site #MS54XC752B)
EXHIBIT B
Page 1 of
DESCRIPTION OF PREMISES
to the Agreement dated , by and between City of
Chanhassen, a Minnesota municipal corporation, as Lessor, and Sprint Spectrum L.P., a
Delaware limited partnership, as Lessee.
The Premises are described and/or depicted as follows:
PLEASE SEE ATTACHED DRAWINGS LABELED AT EXHIBIT B
Notes:
1.This Exhibit may be replaced by a land survey of the Premises once it is received by Lessee.
2.Setback of the Premises from the Land's boundaries shall be the distance required by the
applicable governmental authorities.
3.Width of access road shall be the width required by the applicable governmental authorities,
including police and fire departments.
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(Lake Lucy Water Tower Site #MS54XC752B)
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