1h Approval of Cell Tower Lease Agreement wtih T-Mobile
CITY OF
CHANHASSEN
7700 Market Boulevard
PO Box 147
Chanhassen, MN 55317
Administration
Phone 952.227.1100
Fax 952.2271110
Building Inspections
Phone 952.227.1180
Fax 952.227.1190
Engineering
Phone 952.227.1160
Fax 952.227.1170
Finance
Phone: 952.227.1140
Fax 952.227.1110
Park & Recreation
Phone 952.2271120
Fax 952.227.1110
Recreation Center
2310 Coulter Boulevard
Phone 952.227.1400
Fax 952.227.1404
Planning &
Natural Resources
Phone 952.2271130
Fax: 952.227.1110
Public Works
1591 Park Road
Phone 952.227.1300
Fax 952.2271310
Senior Center
Phone 952.227.1125
Fax 952.2271110
Web Site
www.ci.chanhassen.mn.us
In
MEMORANDUM
TO:
Todd Gerhardt, City Manager
FROM:
Justin Miller, Assistant City Manager:1 AA *-,
September 2, 2005
DATE:
RE:
Cell Tower Lease Agreement with T -Mobile
BACKGROUND
Staff has been contacted by representatives from T -Mobile (officially a
VoiceStream Minneapolis company) regarding the installation of cellular phone
antennae on the Lake Lucy water tower. This tower already has cellular antennae
for Sprint, and the addition of T -Mobile antennae would help generate revenue for
the City and provide better service for T -Mobile customers while not impacting
the operations of the Lake Lucy water tower.
The key points of the agreement are as follows:
. The term of the lease is for five years, beginning on the earlier of
November 1, 2005 or the date construction begins. The lease can be
extended for up to 20 years (four renewal terms of five years each).
. Rent for the first term is $1,650/month. This amount increases by 3% in
each successive renewal term. This rent structure is similar to other cell
leases in the City and on this specific tower.
. The antennae will be mounted on the sides of the tower, and will not
extend into the air above the tower.
. Ant taxes levied on the property due to the antennae will be paid by T-
Mobile.
. Any expenses incurred by the City due to the antennae will be reimbursed
by T -Mobile.
. The agreement may be terminated by the City if rent is not paid 15 days
after written notice, if the water tower no longer becomes needed, or if a
higher priority user (such as a City or public safety use) is needed.
. T-Mobile will pay an administrative fee of $5,000 on the commencement
date to pay for independent inspections services that the City intends on
using to monitor the installation of the antennae.
RECOMMENDA TION
Staff recommends that the Chanhassen City Council approve the attached Water
Tower Antennae Agreement with VoiceStream Minneapolis, Inc. for the purposes
of installing cellular telephone antennae on the Lake Lucy Water Tower. This
action requires a majority of the City Council for approval.
The City 01 Chanhassen. A growing community with clean lakes, quality schools, a charming downtown, thriving businesses, winding trails, and beautiful parks. A great place to live, work, and play.
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SITE NAME: Lake Lucy Water Tower
SITE NUMBER: A1P982
WATER TOWER
ANTENNAE AGREEMENT
THIS WATER TOWER ANTENNAE AGREEMENT ("Agreement") is made
and entered into this _ day of , 2005, by and between the CITY OF
CHANHASSEN, MINNESOTA, a Minnesota municipal corporation (hereinafter
refereed to as the "City"), and VoiceStream Minneapolis, Inc., a Delaware corporation
(hereinafter referred to as "Tenant").
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. Tenant desires to install, operate and maintain a single facility, consisting
of up to 12 panel antennas, including all necessary wiring, cabling and
conduits, used for the transmission and reception of radio communication
signals (hereinafter referred to as the "Antennae") and any related
equipment (hereinafter referred to as the "Equipment") in accordance with
the terms of this Agreement.
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 are 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 communications systems for the City of
Chanhassen. Subject to the terms of this Agreement, the City authorizes
Tenant's non-exclusive use of a certain portion of the Property, which is
legally described on Exhibit A attached hereto, subject to any and all existing
easement and restrictions not inconsistent with the rights granted hereunder,
for the purposes described in Paragraph 4 of this Agreement, including the
installation, operation, and maintenance of the Antennae and Equipment. The
locations on the Water Tower where Tenant is authorized to install the
Antennae and the location of the ground space on the Property and access and
utility easements are depicted on Exhibit B attached hereto (collectively, the
"Premises"). Tenant shall provide for and be responsible for all utility
services used by Tenant and the maintenance of the Equipment or Premises.
Tenant shall be entitled to the exclusive use of the Antennae and Equipment
locations during the Initial Term and during Renewal Terms.
2. Term. The initial term ("Initial Term") of this Lease will be for five (5) years,
commencing on the earlier of the date that Tenant starts construction on the
Premises, or November 1,2005 ("Commencement Date"), and will terminate
at 11 :59 p.m. on the date immediately preceding the fifth anniversary of the
Commencement Date, unless sooner terminated as provided herein. Tenant
shall have the right to extend the term of this Agreement for four (4)
additional five (5) year terms (each, a "Renewal Term") on the same terms
and conditions as set forth herein. This Agreement shall automatically be
extended for each successive Renewal Term unless Tenant gives City written
notice of its intention not to extend at least sixty (60) days prior to the
expiration of the then-existing term.
3. Rent and Compensation.
a. Tenant agrees to pay as rent to City, monthly in advance beginning on the
Commencement Date, an amount equal to one thousand six hundred fifty
dollars ($1,650.00) ("Rent") for attaching up to twelve (12) antennas and
twenty-four (24) lines of coaxial cable to the Water Tower. Tenant's first
installment of Rent will be paid to City on or before the Commencement
Date, and subsequent installments of Rent shall be paid in advance on or
before the first day of each month. Payments for any partial months shall
be prorated.
b. During the Initial Term and any Renewal Terms, Rent will increase
annually by three percent (3%) and such increases will be effective on
each anniversary of the Commencement Date.
c. On the Commencement Date, Tenant shall pay to the City an
administrative fee of Five Thousand Five Hundred and no/IOO Dollars
($5,500.00).
4. Use.
a. Tenant may use the Premises and the Water Tower solely for the purpose
of constructing, installing, removing, replacing, maintaining, and
operating the Antennae and Equipment, subject to such modifications and
alterations as may result from changes or improvements in technology.
Prior to Tenant installing, subsequently modifying, or removing the
Antennae and the Equipment, it shall provide written notice to the City,
along with copies of the plans and specifications of the work. The City
shall have the right to approve the manner of installation and the location
on the Water Tower where Tenant installs the Antennae, which approval
shall not be unreasonably withheld, conditioned or delayed. Tenant shall
not install any subsequent antennae (beyond the original twelve panel
antennas including all necessary wiring, cabling and conduits) without
negotiating a written addendum of this Agreement, which addendum shall
include an increase in the Rent.
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b. Except for the antennas, wiring, cabling and conduits depicted on Exhibit
B, Tenant shall store all Equipment related to the Antennae in the
Premises.
c. City will not in any way be responsible for the Antennae, the related
Equipment, the Premises, or any personal property actually placed on the
Property or in the Premises or installed on the Water Tower by Tenant.
d. The Antennae and related Equipment shall remain the property of Tenant,
subject to the terms of Paragraphs 7 and 8.
e. Tenant, at all times during this Agreement, shall have access to the ground
portion of the Premises in order to install, operate, and maintain Antennae
and Equipment. Tenant shall have access to the Water Tower only with
the approval of the City. Tenant shall request access to the Water Tower
at least twenty-four (24) hours in advance except in emergency, and City's
approval thereof shall not be unreasonably withheld, delayed, or
conditioned. In the event that it is necessary for Tenant to have access to
the Water Tower at some time other than the normal working hours of the
City, the City may charge Tenant for reasonable expense, including
employee wages that the City may incur in providing such access to
Tenant. The City will be entitled to reimbursement from Tenant if City
incurs any costs associated with providing Tenant access to Water Tower,
Property or Premises except in those cases where cost is incidental to City
obtaining access for its own purposes unrelated to Tenant's use of
Antennae, Water Tower and Premises. Notwithstanding the foregoing,
"access" does not require or impose upon the City an affirmative duty to
snowplow in order to provide "access" to the Property or to the Water
Tower. The City shall not be responsible for damages or otherwise for
interruption in Tenant services where the interruption is due to an
emergency or performance of maintenance and repairs on the Water
Tower.
f. Tenant shall take all steps necessary to prevent any mechanics' or
materialmen's liens from being placed on the Property as a result of
Tenant's use of the Water Tower, Property and Premises, and specifically
indemnifies the City from such liens.
g. The color of the Antennae and any Equipment placed on the Water Tower
shall match the color of the Water Tower.
h. Tenant shall pay all personal and real property taxes assessed against the
Antennae, related Equipment and/or Premises. If any such improvements
constructed on the Property should cause part of the Property to be taxed
for real estate purposes, Tenant agrees to timely pay its pro rata share, of
such taxes. Tenant's pro rata share of such taxes shall be calculated by a
percentage, such percentage shall be based upon Tenant's 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 obligation of Tenant to pay
such property taxes.
1. The City represents and warrants to Tenant that Tenant shall enjoy ingress,
egress, and access from an open and improved public road to the Property
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adequate to service the Premises, Antennae and the Equipment at all times
during this Agreement and at no additional charge to Tenant. Any access
easements shall terminate upon termination of this Agreement and Tenant
agrees to execute any and all documents necessary to remove the easement
from the Property.
J. Within thirty (30) days after the completed installation, Tenant shall
provide the City with record drawings of the Antennae, Equipment, and
improvements installed on the Property, witch shows the actual location of
all Antennae, Equipment and Premises. Said drawings shall be
accompanied by a complete and detailed inventory of all Equipment,
personal property, and Antennae actually placed on the Property by
Tenant.
5. Maintenance of Antennae; Modification.
A. Tenant shall maintain the Antennae and Equipment in good condition at
all times, at its sole cost and expense. Tenant shall conduct all repair,
replacement and maintenance operations in accordance with applicable OSHA
regulation or such other occupational and safety regulations pertaining to such
operations. Every five (5) years from the commencement date of this
Agreement, Tenant shall have the Antennae and Water Tower inspected by a
Registered Civil Engineer and provides the City with a copy of the inspection
report. If Tenant fails to do so, and such failure creates a risk of damage or
injury to persons or property (as determined in the reasonable discretion of the
City), the City may take such steps as it determines to be necessary to protect
persons or property; including removal of the Antennae and the Equipment.
Tenant shall reimburse the City for any costs incurred in connection with
assuring compliance with the provisions of this paragraph; including any costs
of restoring the Water Tower and the Property to their original condition. If
Tenant fails to pay the City for such costs within thirty (30) days of a demand
by the City for payment, the City at its election my terminate this Agreement
and retain any prepaid Rent. Notwithstanding anything contained in this
Paragraph 5 to the contrary, the City shall not be entitled hereunder to take
any action or to incur any costs for which Tenant would be liable without first
giving Tenant written notice of the breach of its obligations under this
Paragraph 5 and Tenant fails to cure such breach within thirty (30) days of its
receipt of such notice; provided, however, that such cure period shall not be
required in the event that the breach by Tenant creates an immediate threat of
damage or physical injury to persons or property (as determined in the
reasonable discretion of the City.) These remedies are nonexclusive, and the
City expressly reserves its rights to pursue an available legal or equitable
remedies.
B. Any additional expense of repainting, repairing, or maintaining the
Property or the Water Tower reasonably incurred by the City as a direct
consequence of the presence of the Antennae and/or the Equipment being
located thereon shall be paid within 30 days by Tenant to the City upon
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receipt from the City by Tenant of the City's written notice of such additional
cost, which notice shall state the reason(s) for the incurring of such costs and
shall include a reasonable itemization of such costs.
C. Tenant shall remove its Antennae facilities at Tenant cost, upon reasonable
notice to allow maintenance, repair, and repainting, deemed appropriate in the
reasonable discretion of the City. There may be scheduled interruptions in use
of the Antennae facilities. Except in the case of an emergency, City shall give
Tenant at least ninety (90) days' written notice of repair, repainting, or
restoration. In case of an emergency which means there is a threat to the
health or safety of the public, or damage to the Property, City may remove
Tenant's Antennae facilities, but shall notify Tenant by telephone as soon as
reasonably possible. An "emergency" shall be deemed to exist only in those
situations which constitute an immediate threat to the health or safety of the
public or immediate danger to the Property. In the event the use of Tenant's
Antennae facilities is interrupted, Tenant shall have the right to maintain and
operate mobile cellular sites on wheels on the Property or, after approved by
City, on any land owned or controlled by City in the immediate area of the
Property.
D. No material alteration or addition to the Antennae or the Equipment shall
be made by Tenant until Tenant has submitted to the City a detailed proposal
for the same, and the City has approved such proposal. Such approval by the
City shall not be unreasonably withheld, delayed, or conditioned. The City
may require that either or both of the studies required under Subparagraph
lIE hereof be conducted, to the extent that the City reasonably deems the
same necessary for the proper evaluation of such proposed alteration or
addition, which study or studies shall be performed at the sole expense of
Tenant.
6. Utilities. Tenant shall separately meter and pay all electric and other utility
services that are associated with the use of the Property, the Water Tower, and the
Equipment. The City agrees to cooperate with Tenant in its efforts to connect the
Antennae and Equipment to existing utility service at Tenant's expense. The City
makes no representation or warranty regarding the availability of electric or other
utility service to the Water Tower or the Equipment. Tenant shall have the right
to install utilities, at Tenant's expense, and to improve the present utilities on the
Property including, but not limited to the use of a temporary mobile emergency
power generator adjacent to the Equipment for use for a period up to thirty (30)
days. The City shall not be liable, and Tenant waives any and all claims against
the City, for any interruption of electrical or other utility services Property,
Antennae or Equipment.
7. Removal of Antennae and Equipment.
A. Tenant shall remove the Antennae and all personal property and trade
fixtures at its own cost and expense upon the expiration or earlier
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termination of this Agreement. Tenant shall, at its sole cost and expense,
return the Water Tower and the Property to substantially the same
condition they were in on the Commencement Date, normal wear and tear
excepted. In the event Tenant fails to so remove any component of the
Antennae, the Equipment, or both, or to return the Water Tower and the
Property to the condition specified in this subsection within thirty (30)
days of the expiration or termination of this Agreement, then the City shall
have the right to remove the Antennae or Equipment at Tenant's sole cost
and expense. If Tenant fails to reclaim the Antennae or Equipment with
thirty (30) days' notice from the date of removal by the City, said
Antennae and Equipment shall without further notice be deemed
abandoned. No Antennae or Equipment will be released by the City to
Tenant until Tenant has reimbursed the City for all expenses related to
removing the Antennae and the Equipment and returning to the Property
and the Water Tower to the condition specified in this subsection.
B. Waiver of City's Lien.
1. City waives any lien rights it may have concerning the Tenant's
facilities which are deemed Tenant's personal property and not
fixtures, and Tenant has the rights to remove the same at any time
without City's consent.
2. City acknowledges that Tenant has entered into or may enter into a
financing arrangement including promissory notes and financial and
security agreements for the financing of Tenant's facilities (the
"Collateral") with a third party financing entity (and may in the future
enter into additional financing engagements with other financing
entities). In connection therewith, City (i) consents to the installation
of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures
or otherwise; and (iii) agrees that the Collateral shall be exempt from
execution, foreclosure, sale, levy, attachment, or distress for any Rent
due or to become due and that such Collateral may be removed at any
time without recourse to legal proceedings.
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:
a. by either party upon default of any covenant or term hereof by
the other party, which default is not cured within sixty (60) days of receipt
of written notice of default to the other party (without, however, limiting
any other rights of the parties pursuant to any other provisions hereof).
However, if the default may not be reasonably cured within a 60 day
period, this Agreement may not be terminated if the defaulting party
commences action to cure the default within such 60 day period and
proceeds with due diligence to fully cure the default;
b. by Tenant for cause if it is unable to obtain or maintain any
license, permit, or other governmental approval necessary for the
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construction and/or operation or use of the Property, Antennae, Equipment
or the Water Tower as a transmission facility;
c. by Tenant for cause if the Property is or becomes unacceptable
for technological reasons under Tenant's design or engineering
specifications for its Antennae or related Equipment;
d. by the City if Tenant fails to tender the monthly Rent payment
within fifteen (15) days of written notice from the City that Tenant is in
default payment of Rent;
e. by the City if the determines, after consultation with a licensed
structural engineer that the Water Tower is structurally unsound for use as
a water tower, for any reason including but not limited to considerations
related to the age of the structure, damage to or destruction of all or part of
the Water Tower or the Property from any source, or factors relating to the
condition of the Property;
f. by the City, if its City Council decides, for any reason, to
discontinue use of the Water Tower for all purposes, in which event
Tenant shall not be entitled to compensation in any form for any reason as
a result of the City's exercising its rights under this subparagraph;
g. by Tenant if City causes electrical utility services to be
interrupted for a period of more than thirty (30) days; or
h. If the City determines that a potential user with a higher priority
as identified under Paragraph 10 below cannot find another adequate
location or the Antennae and Equipment unreasonably interfere with
another user with a higher priority, regardless of whether or not such an
interference was predicted in the initial interference study that was a part
of the application process.
B. Notwithstanding anything to the contrary in this Agreement, in no event will
either party be liable to the other party for, or indemnify the other party against,
punitive, indirect, incidental, special or consequential damages, including,
without limitation, loss of profits, income or business opportunities.
C. If Tenant terminates this Lease pursuant to subsection 8.A.c, above, Tenant
shall pay to City as liquidated damages for early termination, 150% of the
annual Rent for the year in which Tenant terminates; provided, however, that
Tenant shall not be required to pay any liquidated damages or termination fee if
Tenant elects not to renew the term of this Agreement pursuant to Section 2,
above.
9. Interference.
A. Upon paying the Rent as required herein, Tenant shall have the right to the
non-exclusive use of the Water Tower and Property as permitted in this
Agreement. City in no way guarantees to Tenant noninterference with
Tenant's transmission operations, provided, however, that in the event any
other party except a high priority user requests permission to place any
type of additional antennae or transmission facility on the Property, the
procedures of Paragraph lID shall govern to determine whether such
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antennae or transmission facility will interfere with Tenant's transmission
operations.
10. Interference Caused By Antennae. Tenant's Equipment shall be installed and
operated in a manner which does not cause interference or otherwise impair the
quality of the communication services being rendered by the following higher
priority users: (1) City and (2) public safety 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 are regulated solely by the federal
government), the City may order Tenant to discontinue its operations.
Tenant shall immediately comply with such an order. Service shall be
discontinued only for the period that the immediate threat exists. If the
City does not give prior notice to Tenant, the City shall notify Tenant as
soon as possible after its action and give its reason for taking the action.
The City shall not be liable to Tenant or any other party for any
interruption in Tenant's operation of its Antennae or Equipment, except as
may be caused by the negligence or willful misconduct of the City, its
employees, contractors or agents. In any event, the City's liability shall not
extend beyond the obligation to repair the cause of the interruption or
interference. If the discontinuance extends for a period greater than three
(3) business days, Tenant's sole remedy shall be to terminate this
Agreement within its sole discretion.
B. With Structure. Tenant shall not interfere with City's use of the Water
Tower or Property and agrees to cease all such actions which
unreasonably and materially interfere with City's use thereof no later than
three (3) business days after receipt of written notice of the interference
from City. In the event that Tenant's cessation of action is material to
Tenant's use of the Water Tower and Property and such cessation
frustrates Tenant's use of the Water Tower and Property, within Tenant's
sole discretion, Tenant shall have the immediate right to terminate this
Agreement.
C. With Higher Priority Users. If Tenant's Equipment causes impermissible
interference with the parties identified in Paragraph 10 above or with pre-
existing tenants, Tenant shall take all measures necessary to correct and
eliminate the interference. If the interference cannot be eliminated within
48 hours after receiving City's written notice of the interference, Tenant
shall immediately cease operating its Antennae and shall not reactivate
operation, except intermittent operation for the purpose of testing, until the
8
interference has been eliminated. If the interference cannot be eliminated
within thirty (30) days after Tenant received City's written notice, City
may at its option terminate this Agreement immediately.
D. Interference Study - New Occupants. Upon written notice by City that is
has a bona fide request from any other party to lease an area including or
in close proximity to the Water Tower and Property, Tenant agrees to
provide City, within twenty (20) days, the 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 Tenant. City shall require the new applicant to pay for such
interference studies. Except for those parties and entities identified in
Paragraph 10, City agrees that it will not grant a future lease in the Water
Tower and Property to any party if such party's use is reasonably
anticipated to interfere with Tenant's operation of its Antennae or
Equipment.
E. Initial Study. Before obtaining a building permit, Tenant must pay for the
reasonable cost of (i) a radio frequency interference study carried out by
an independent and qualified professional selected by the City showing
that the Tenant Antennae use will not interfere with any existing
communication facilities; and (ii) an engineering study showing that the
Water Tower is able to support the Antennae and Equipment, as referred
to in Exhibit B hereto, without prejudice to the City's use of the Water
Tower. If the study finds that there is a potential for interference that
cannot be easily remedied or for prejudice to the Water Tower, the City
may terminate this Agreement immediately and refund any prepaid Rent
to Tenant. The City shall order such studies promptly upon its receipt of
the application of Tenant for a building permit, and shall cause the same to
be completed as soon as reasonably possible. If the City decides to
exercise its termination right under this Subparagraph lIE, then the City
shall give Tenant written notice of such termination within ten (10) days
after receipt by the City of the last of such studies, which notice shall
specify the condition disclosed by either such study upon which the City is
basing the exercise as such right and shall include the refund of such
prepaid rent.
12. Future Development. Tenant understands and acknowledges that the City may
utilize the Property for public use at some future date, and that the design and
manner of such uses shall be in the sole discretion of the City. In the event City
undertakes such use, then the City and Tenant agree to cooperate with one another
as necessary to facilitate both parties' use of the Property.
13. Indemnity.
a. General. Tenant agrees to defend, indemnify and hold harmless City and
its elected officials, officers, employees, agents, and representatives, from and
9
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, its employees, agents or contractors. Tenant shall defend all claims arising
out of the installation, operation, use maintenance, repair, removal, or presence
of Tenant's Antennae, Equipment and related facilities on the Property.
b.Tenant's Warranty. Tenant represents and warrants that its use of the Water
Tower, Property and Equipment will not generate and Tenant 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. Tenant
will promptly inform the City in writing if Tenant 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. Tenant's installation, operation,
maintenance, modification, and removal of the Antennae and Equipment shall not
damage or interfere in any way with the Property or the Water Tower operations
or related repair and maintenance activities. If the activities of Tenant, or those of
its agents, representative, employees, contractors, or subcontractors, cause such
damage or interference, Tenant will cure damage or interference within thirty (30)
days after receipt of written notice or, if the default may not reasonably be cured
within a 3D-day period, Tenant must commence an action to cure the default
within a 3D-day period and proceed with due diligence to fully cure the default. If
the Tenant fails to cure such damage or interference, the City without further
notice may take such steps as it deems necessary to repair the damage or remedy
the interference, at the sole cost and expense of Tenant.
15. Casualty. If any portion of the Property, Water Tower or Antennae is damaged by
any casualty and such damage materially and adversely affects Tenant's use of the
Water Tower or Property, Tenant may give thirty (30) days' notice of its intention
to terminate this Agreement, in which case the Agreement will terminate on the
date specified in such notice and except as otherwise provided herein, neither
party will have any further rights or obligations under this Agreement. Such
notice must be given within fifteen (15) days of notice of the casualty.
16. Quiet Enjoyment. Tenant, upon paying Rent, shall peaceably and quietly have,
hold and enjoy the Premises and Water Tower. If, as of the date of execution of
this Agreement or hereafter, there is any mortgage, or other encumbrance
affecting the City's Property or Water Tower, then City agrees to obtain from the
holder of such encumbrance an Agreement that Tenant shall not be disturbed in
its possession, use and enjoyment of the Property and Water Tower. The City
shall not cause or permit any use of the Property which interferes with or impairs
the quality of the communication services being rendered by Tenant from the
Property.
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17. Insurance
A. As long as the Agreement is in effect, Tenant shall maintain a general
liability insurance policy that provides coverage for the Property and the
Water Tower from any damage to property or injuries to persons. Said
insurance policy shall provide coverage on an occurrence basis in an
amount no less than Two Million Dollars ($2,000,000), and shall include
contractual liability coverage to provide coverage for the indemnification
provision in Paragraph 13 of this Agreement. Said insurance policy shall
list the City as an additional insured. Said policy shall contain a clause
that provides that the insurer will not cancel, non-renew, or reduce the
coverage of the policy without first giving the City thirty (30) days' prior
written notice. Tenant shall provide the City with a Certificate of
Insurance for said policy with specifically details the conditions of the
paragraph. Tenant shall also maintain fire and extended coverage
insurance insuring Tenant's personal property for its full insurable value
(subject to reasonable deductibles).
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 first party property
insurance policies which the releasing party carries with respect to the
Property, including the Antennae and Lease Premises, but only to the
extent that such loss is collected under such insurance policy(s). Any
policy required to be obtained pursuant to this Paragraph 17 shall contain a
Waiver of Subrogation in favor of the other party to this Agreement.
18. Condition of Property. Tenant acknowledges that the City makes no
representations or warranties regarding the suitability of the Property or the Water
Tower for Tenant's intended use under this Agreement. City represents that the
Water Tower and Property are in compliance with all building and other
life/safety codes.
19. Condemnation. In the event the while of the Property is taken by eminent domain,
this Agreement shall terminate as of the date title to the Property vests in the
condemning authority. In the event a portion of the Property is taken by eminent
domain, either party shall have the right to terminate this Agreement as of said
date of title transfer, by giving thirty (30) days' written notice to the other party.
In the event of any taking under the power of eminent domain, Tenant shall no be
entitled to any portion of the reward paid for the taking and the City shall received
full amount of such award.
Tenant herby expressly waives any right or claim to any portion thereof. Although
all damages, whether awarded as compensation for diminution in value of the
leasehold or to the fee of the Property, shall belong to City, Tenant shall have the
right to claim and recover from the condemning authority, but not from City, such
compensation as may be separately awarded or recoverable by Tenant on account
of any and all damage to Tenant's business and any costs or expenses incurred by
City in moving/removing its Antennae, Equipment or personal property. Sale of
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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 it, at the same or different times, of any
such remedies for the same default or breach of any of its remedies for any other
default or breach by the other party. No waiver made by either such party with
respect to the performance, or manner of time thereof, or any obligation under this
Agreement shall be considered a waiver of any rights of the party making the
waiver with respect to the particular obligation of the party or condition to its own
obligation beyond those expressly waived in writing and to the extent thereof, or a
waiver in any respect in regard to any other rights of the party making the waiver
of any other obligation of the other party. Delay by a party hereto in instituting or
prosecuting any cause of action or claim hereunder shall not be deemed a waiver
of any rights hereunder.
21. Miscellaneous.
A. Whole Agreement: Modification: This Agreement contains all of the terms
and conditions relating to the rights granted herein, and replaces any oral
agreements or other negotiations between the parties relating to the
Agreement. No modifications to this Agreement shall be valid unless and
until they have been placed in writing and signed by both parties hereto.
B. Severability: If any term of this Agreement is found to be unenforceable to
invalid by a court of competent jurisdiction, such unenforceable or
invalidity shall not affect the remaining terms of this Agreement, which
shall continue in full force and effect.
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 Tenant.
F. Assignment and Delegation:
(a) By Tenant:
Tenant may not assign, or otherwise transfer all or any part of its interest
in this Agreement or in the Premises without the prior written consent of
City, which will not be unreasonably withheld, conditioned or delayed;
provided, however, that Tenant may assign its interest without City's
consent to Tenant's parent company, any subsidiary or affiliate of it or its
parent company or to any successor-in-interest or entity acquiring fifty-
one percent (51 %) or more of its stock or assets, subject to any financing
entity's interest, if any, in this Agreement as set forth in Paragraph 9
above. City may assign this Agreement upon written notice to Tenant,
subject to the assignee assuming all of City's obligations herein, including
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but not limited to, those set forth in Paragraph 9 above. Notwithstanding
anything to the contrary contained in this Agreement, Tenant may assign,
mortgage, pledge, hypothecate or otherwise transfer without consent its
interest in this Agreement to any financing entity, or agent on behalf of
any financing entity to whom Tenant (i) has obligations for borrowed
money or in respect of guaranties thereof, (ii) has obligation evidenced by
bonds, debentures, notes or similar instruments, or (iii) has obligations
under or with respect to letter of credit, bankers acceptances and similar
facilities or in respect of guaranties thereof.
(b) By the City: The City may freely assign its rights and delegate its
duties under this Agreement to a joint powers organization of which it is
now a member, or to any such organization to which it may become a
member during there term of this Agreement.
G. Notices: Notices shall be in writing and personally delivered, sent by
United States mail, postage prepaid, certified or registered with return receipt requested,
or by any nationally recognized overnight courier, service to the following:
If to City:
City of Chanhassen
7700 Market Boulevard Box 147
Chanhassen, MN 55317
ATTN: Todd Gerhardt, City Manager
If to Tenant:
VoiceStrearn Minneapolis, Inc.
c/o T-Mobile
8550 W. Bryn Mawr Ave., Suite 100
Chicago, IL 60631
Attn: Lease Administrator (MPLS)
With a copy to:
VoiceStrearn Minneapolis, Inc.
c/o T -Mobile
12920 SE 38th Street
Bellevue, W A 98006
Attn: PCS Lease Administration
H. Estoppel Certificates: Each party agrees to furnish to the other, within ten
(10) days after request, such truthful estoppels information as the other may
reasonably request.
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 Tenant in executing
any documents (including a Memorandum of Lease in the form annexed
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hereto as Exhibit D) necessary to protect Tenant's rights hereunder or
Tenant's use of the Water Tower, Equipment or 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CITY OF CHANHASSEN
BY:
Tom Furlong, Mayor
AND
Todd Gerhardt, City Manager
Federal ID# 410885331
TENANT:
VoiceStream Minneapolis, Inc.
BY:
STATE OF MINNESOTA )
) ss.
COUNTY OF CARVER )
The foregoing instrument was acknowledged before me this day of _
2005, by Tom Furlong and Todd Gerhardt, respectively the Mayor and City Manager
of the City of Chanhassen, Minnesota, a municipal corporation, on behalf of the City,
and pursuant to authority granted by its City Council.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The forgoing instrument was acknowledged before me this day of _
2005, by Hossein Sepehr, the Director, Engineering and Operation, of
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VoiceStream Minneapolis Inc., a Delaware corporation, on behalf of the
corporation.
Notary Public
DRAFTED BY:
CAMBELL KNUTSON
Professional Association
1380 Corporate Center Curve
317 Eagandale Office Center
Eagan, MN 55121
Telephone: (651) 452-5000
RNK:sm
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