1f Antenna Agree/Spring PCS
.,
CITY OF
CHANHASSEN
o City Center Drive, PO Box 147
'],anbassen, Minnesota 55317
Pbone 612.937.1900
General Fax 612,937.5739
:"ginming Fax 612.937.9152
ublie Safety Fax 612.934.2524
:t'eb www.ci.ebanbassen.mn.us
MEMORANDUM
TO:
Scott Botcher, City Manager
Todd Gerhardt, Assistant City ~anage~ .
October 18, 2000
~.
? City of Cbnnbnssen, A filTJwinr community with clean lakes, Quality scbools. a cbmm;,,, downtown. tbrioin. bUJÍnesm, and beautiM Darks, A "'eat .Ince to Ii"" work, and .Ia.
FROM:
DATE:
SUBJ:
Site Antenna Agreement with Sprint Spectrum, LP
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 8175 Hazeltine Boulevard (Arboretum Business Park Water
Tower-see Attachment #2). The following is a summary of the terms and
conditions of the proposed lease;
Term:
Initial Term-5 years
Rent:
$60,000 up front ($1,083/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 ofPCS 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.
Utilities:
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 8175 Hazeltine
Boulevard (Arboretum Business Park Water Tower).
ATTACHMENTS
I. Lease Agreement
2. Site Plan
g:\admin\tg\sprint antenna. doc
Chanhassen Water Tower
MS20XC894
SITE NAME:
SITE NUMBER: .
WATER TOWER
ANTENNAE AGREEMENT
THIS AGREEMENT is made and entered into this _ day of '
by and between the CITY OF CHANHASSEN, MINNESOTA, a Minnesota municipal
Corporation (hereinafter refereed to as the "City"), and ' \
SPRINT SPECTRUM. L.P. Dfß/Af SPRINT PCS. a eef(3eraiÎenDelaware
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 _--------' 8175 Hazeltine Boulevard in
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 ànd
maintained by the City (hereinafter referred to as the "Water Tower").
C. COMMUNICATIONS COMPANY desires to install, operate and maintain a
single facìlity, consisting of 12 pancl antclmas..________________________________________..__ '
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.
Tower.
The parties desire to enter into this Agreement relating to the use of the Water
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 fo\1ows;
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
CHAN/SPRINT
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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 COMMUNICA TIONS 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, (co\1ectively, the "Premises").
2. Term. The term of this Agreement shall begin on December I. I
2000 or the date COMMUNICA TIONS COMPANY begins construction on the
site, whichever first occurs, and end at midnight on Novembcr 30. 2005 ("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 COMMUNICA nONS 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 Oae IIlIIulreE! Sixty Thousand and nolI 00 Dollars I
($] gO,99060.000) in a lump sum payment. anE! a;~ aElE!itisRal Fi':e ThOHsaRE! aRE! ne'J 90 Dollarª
($5.990.gg) SR er aefere :.
B. Upon commencement of the sixth year (the first year of the Renewal
Term), the armual fee shall be Eighteen Thousand and nolI 00 Dollars ($18,000), and thereafter
for the duration of this Agreement the armual fee shall increase by three percent (3%) each year.
C. 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.
COMMUNICA TIONS COMPANY shall provide for and be responsible for all utility services
used by COMMUNICA TIONS 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 'ear from the execution of this Lease. COMMUNICATJONS
COMPANY a rees to a to the Cit, an administrativc fee ofFivc Thollsand and nollOO Dollars
($5.000),
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,
86347,04 (Redlined by RNK), t
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CHAN/SPRlNT
.
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 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 wi\1
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 sha\1 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.
CHAN/SPRlNT
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H. COMMUNICA TIONS 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, COMMUNICA TIONS COMPANY agrees to timely
pay its pro rata share, of such taxes. COMMUNICA TIONS 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 ITom 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. Mairitenance of Antennae: 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 restoring the Water Tower and the
Property to their original condition. If COMMUNICATIONS COMPANY fails to pay
the City for such costs within thirty (30) days of a demand by the City for payment, the
City at its election may terminate this Agreement and retain the total payment of the
current years rent. Notwithstanding anything contained in this Paragraph 5 to the
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CHAN/SPRlNT
contrary, the City shall not be entitled hereunder to take any action or to incur any costs
for which COMMUNICATIONS COMPANY would be liable without first giving
COMMUNICATIONS COMPANY written notice of the breach of its obligations under
this Paragraph 5 and COMMUNICATIONS COMPANY fails to cure such breach within
thirty (30) days of its receipt of such notice; provided, however, that such cure period
shall not be required in the event that the breach by COMMUNICATIONS COMPANY
creates an immediate threat of damage or physical injury tò 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 sha\1 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 sha\1 give COMMUNICATIONS COMPANY thirty
(30) days' written notice of repair, repainting, or restoration. In case ofan 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 ce\1ular sites on wheels on the Property or, after approval by City, on
any land owned or contro\1ed 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 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
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 electrie and other utility services that are associated with the use of the Property, the
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Water Tower, and the Equipment. The City agrees to Cooperate with
COMMUNICA TIONS 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 instal! utilities, at COMMUNICATIONS COMPANY's expense, and to
improve the present utiJities on the Property including, but' not Jimited 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 al! claims against the City, for any interruption of electrical
or other utility services Property, Antennae or Equipment.
7. Removal of Antennae and Eauipment.
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 earJier termination of this Agreement as provided herein,
or any Renewal Term. COMMUNlCA TIONS COMPANY shal!, at its sole cost and
expense, return the Water Tower and the Property to the condition it was in prior to the
commencement of this Agreement, normal wear and tear excepted. In the event
COMMUNICATIONS COMPANY fails to so remove any component of the Antennae,
the Equipment, or both, or to return the Water Tower and the Property to their original
condition, within thirty (30) days of the termination of this Agreement, then the City shall
have the right to remove the Antennae or Equipment at COMMUNICATIONS
COMPANY's sole cost and expense. If COMMUNICATIONS COMPANY fai!s 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
COMMUNICA TIONS 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 ofCitv's Lien.
(I) City waives any lien rights it may have concerning the COMMUNICA TlONS
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.
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(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,
CHAN/SPRlNT
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
fo\1ows:
(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;
@.: (ei) by the City If COMMUNICATIONS
COMPANY fails to tender the ffiÐfJtl1ly annual rent payment within
fifteen (15) business days of written notice from City that
COMMUNICATIONS COMPANY is in default payment of rent;
c b' thc Citv if COìvHvnJNICA nONS cmvlP ANY fails to tcndcr the
Administrative Fee a ..ment sti ulated in Para fa h 3 within fifteen 15 business da ·s of
written notice from the Cit ' that COMMUNICATIONS COMPANY is in default of said
payment of Administrativc Fec:
w ruby 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 a\1 or part of
the Water Tower or the Property from any source, or factors relating to the
condition of the Property;
ft) {glby the City, if its City Council decides, for any reason, to
discontinue use of the Water Tower for all purposes, in which event
CHAN/SPRINT
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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;
fgj ®by COMMUNICA TIONS COMPANY if City causes electrical
utility services to be interrupted for a period of more than thirty (30) days;
or
W illIf 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 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 COMMUNICA TIONS COMPANY terminates this Agreement
other than of right as provided in this Agreement, COMMUNICA TIONS COMPANY
shall pay tOJ-he City as liquidated damages for early termination, 150% of the annual
rent for the year, unless COMMUNICA TIONS COMPANY terminates during the last
year of any term under Paragraph 2, and COMMUNICA TIONS COMPANY has paid the
annual rent for that year.
9. Interference.
A. Upon paying the rent as required herein, COMMUNICATIONS
COMPANY 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
COMMUNICATIONS COMPANY noninterference with COMMUNICATIONS
COMPANY's transmission operations, provided, however, that in the event any other
party except a high priority user requests permission to place any type of additional
antennae or transmission facility on the Property, the procedures of Paragraph lID shall
govern to determine whether such antennae or transmission facility will interfere with
COMMUNICA TIONS COMPANY'S transmission operations.
10. Interference Caused Bv Antennae. COMMUNICATIONS COMPANY's
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CHANISPRlNT
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 AnteIU1lle Operations.
A. TemDOrarv InterruPtions of Service. If the City determines, in its
reasonable discretion, that continued operation of the Antennae would cause or contribute
to an immediate material threat to public health and/or safety (except for any issues
associated with human exposure to radio frequency emissions, which is regulated by the
federal government), the City may order COMMUNICATIONS COMPANY to
discontinue its operation. COMMUNICATIONS COMPANY shall immediately comply
with such an order. Service shall be discontinued only for the period that the immediate
threat exists. lithe 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
COMP ANY'S operation of its Antennaeor Equipment, except as may be caused by the
negligence or wi\1ful misconduct of the City, its employees or agents. In any event, the
City's liability shall not extend beyond the obligation to repair the cause of the
interruption or interference. If the discontinuance extends for a period greater than three
(3) business days, COMMUNICATIONS COMPANY's sole remedy shall be to
terminate this Agreement within its sole discretion.
B. With StrUcture. COMMUNICATIONS COMPANY shall not interfere
with City's use of the Water Tower or Property and agrees to cease all such actions which
unreasonably and materially interfere with City's use thereof no later than three (3)
business days after receipt of written notice of the interference from City. In the event .
that COMMUNICATIONS COMPANY's cessation of action is material to
COMMUNICATIONS COMPANY's use of the Water Tower and Property and such
cessation frustrates COMMUNICATIONS COMPANY's use of the Water Tower and
Property, within COMMUNICATIONS COMPANY'S sole discretion,
COMMUNICATIONS COMPANY shall have the immediate right to terminate this
Agreement.
C. With Hi!Ù1er Prioritv 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,
urltil the interference has been eliminated. If the interference cannot be eliminated within
thirty (30) days after COMMUNICATIONS COMPANY received City's written notice,
CHANISPRlNT
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City may at its option terminate this Agreement immediately.
D. Interference Studv - New OCCUDants. 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 COMMUNICA nONS COMPANY antennae use
will not interfere with any existing communication facilities; and (ii) an engineering
study showing that the Water Tower is able to support the Antennae and Equipment, as
referred to in Exhibit B hereto, without prejudice to the City's use of the Water Tower. If
the study finds that there is a potential for interference that cannot be easily remedied or
for prejudice to the Water Tower, the City may terminate this Lease Agreement
immediately and refund the initial rent to COMMUNICATIONS COMPANY. The City
shall order such studies promptly upon its receipt of the application of
COMMUNICATIONS 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
right under this Subparagraph I IE, then the City shall give COMMUNICATIONS
COMPANY written notice of such termination within ten (I 0) days after receipt by the
City of the last of such studies, which notice shall specifY the condition disclosed by
either such study upon which the City is basing the exercise of such right and shall
include the refund of such prepaid rent.
12. Future DeveloDment. 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 eleeted officials, officers, employees, agents,
and representatives, from and against any and all claims, costs, losses, expenses,
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demands, actions or causes of action, including reasonable attomeys' 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, wi\1fu\ 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. COMM1lliICATIONS COMPANY's Warranty.
COMMUNICATIONS COMPANY represents and warrants that its use of the Water
Tower, Property and Equipment wi\1 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 wi\1 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 sha\1 survive the expiration or other termination of this Agreement.
14. Dama e to the Water Tower or to the Pro e . 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,
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 Eniovment. 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
CHANISPRlNT
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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 iIýuries 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 shaIl 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.
COMMUNICA TIONS COMPANY shaIl provide the City with a Certificate ofInsurance
for said policy which specifically details the conditions of the paragraph.
COMMUNICATIONS COMPANY shall also maintain fire and extended coverage
insurance insuring COMMUNICA TIONS 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 coIlected 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.
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 COMMUNICA TIONS 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, COMMUNICA TIONS COMPANY shall not
be entitled to any portion of the reward paid for the taking and the City shall receive fuIl
amount of such award. COMMUNICA TIONS 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, shaIl
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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 anyone or more of such remedies
shall not preclude the exercise by it, at the same or different times, of any such remedies
for the same default or breach of any of its remedies for any other default or breach by
the other party. No waiver made by either such party with respect to the 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. Misce\1aneouS.
A. Whole A!!feement: Modification: This Agreement contains a\1 of the
terms and conditions relating to the rights granted herein, and replaces any oral
agreements or other negotiations between the parties relating to the Agreement. No
modifications to this Agreement shall be valid unless and until they have been placed in
writing and signed by both parties hereto.
B. Severability: If any term of this Agreement is found to be
unenforceable or invalid by a court of competent jurisdiction, such unenforceability or
invalidity shall not affect the remaining termS of this Agreement, which shall continue in
full force and effect.
C. Authority: Each party represents and warrants that it has full authority
to enter into and to sign this Agreement.
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.
D. Counteroarts: The parties may sign this Agreement in counterparts.
F. Assignment and Delegation:
CHAN/SP!UNT
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(a) BvCOMMUNICATlONS 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
COMMUNICA TIONS 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 fIftÿ-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 COMMUNICA TIONS 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 COMMUNICA TIONS 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) Bv the CitY.: The City may freely assign its rights and delegate its
duties under this Agreement to a joint powers organization of which it is
now a member, or to any such organization to which it may become a
member during the term of this Agreement.
G. Notices: Notices shaIl be in writing and personaIly delivered, sent by
United States mail, postage prepaid, certified or registered with return receipt requested
or by any nationaIly recognized overnight courier service to the foIlowing:
If to City:
City of Chanhassen
690 City Center Drive, Box: 147
Chanhassen, MN 55317
ATTN: Scott A. Botcher, City Manager
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If to COMMUNICATIONS COMPANY:
Sprint PCS
9801 West HimÚns. Suite 220
Rosemont. IL 60018
Ä-ttn.: Michacl S. Romcsburg
With a copy to:
Sprint Spectrum. L.P.
4900 Main
Kansas Citv. MO 64112
H. Estonuel 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. Govemin!! 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 sha\1
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. Headin!!s. Headings at the beginning of paragraphs herein are for
convenience of reference, sha\1 not be considered part of this Agreement and shall not
influence its constrUction.
IN WITNESS WHEREOF, the parties have executed this Agreement as ofthe date
first above written.
CITY OF CHANHASSEN
BY:
Nancy K. Mancino, Mayor
AND
Scott A. Botcher, City Manager
FederallD #: 410885331
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CHANISPR!NT
COMMUNICATIONS COMPANY:
BY:
Michael S. Romesburg
Its Director of Site Development
STATE OF MlNNESOTA )
) ss.
COUNTY OF CARVER )
The foregoing instrument was acknowledged before me this day
, , by Nancy K. Mancino and Scott A. Botcher, 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.
Notary Public
STATE OF
)
) ss.
)
COUNTY OF
The foregoing instrument was acknowledged before me this
, by
a
of
cOrporation, on behalf of the corporation.
day of
the
DRAFTED BY:
Notary Public
CAMPBELL KNUTSON
Projèssional AssOciation
1380 Corporate Center Curve
3 I 7 Eagandale Office Center
Eagan, MN 55121
Telephone: (651) 452-5000
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CHAN/SPRINT
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 . Surint Suectrum L.P,
d/b/a Sprint PCS. a Delaware limited partnershiQCsfj3Bret4sn, 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 fo\1ows:
Property ID #:
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EXHIBIT B
Page I of
DESCRIPTION OF PREMISES
to the Agreement dated
of Chanhassen, a Minnesota municipal
,a
, by and between City
cOrporation, as Lessor, and
corporation, as Lessee.
The Premises are described and/or depicted as follows:
PLEASE SEE ATTACHED DRA WINGS LABELED A T EXHIBIT B
Notes;
I. This Exhibit may be replaced by a land survey of the Premises once it is received by
Lessee.
2.Setback of the Premises &om the Land's boundaries shall be the distance required by the
applicable govemmentaI 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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