09-068CITY OF SHOREWOOD
RESOLUTION NO. -065
WHEREAS, Clear Wireless LLC (Applicant) has determined that, in order to provide
uninterrupted advanced high -speed internet services to consumers and business in its territory, it
requires an antenna site in the westerly portion of the City of Shorewood; and
WHEREAS, the City of Shorewood has an interest in the property at 26352 Smithtown
Road, which property is legally described in Exhibit A of the Water Tower Space Lease
Agreement, attached hereto as Attachment I; and
WHEREAS, the Applicant has applied for a Conditional Use Permit for the installation
of up to three (3) dish -style communications antennas and three panel antennas to be located on
the stem of Shorewood's Minnewashta water tower, and the installation of a small equipment
cabinet to be located inside the fenced -in compound at the base of the water tower; and
WHEREAS, the Applicant's request has been reviewed by the City Planner, and his
recommendations have been duly set forth in a memorandum to the Planning Commission dated
12 November 2009, which memorandum is on file at City Hall; and
WHEREAS, after required notice, a public hearing was held and the application
reviewed by the Planning Commission at its regular meeting on 17 November 2009, the minutes
of which meeting are on file at City Hall; and
WHEREAS, the Applicant's application was considered by the City Council at its
regular meeting held on 23 November 2009, at which time the Planner's memorandum was
reviewed, the minutes of the Planning Commission were reviewed, comments were heard from
City Council members and staff, and approval given for the Conditional Use Permit, subject to
review and completion of a satisfactory lease agreement between the City and the Applicant.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Shorewood as follows:
FINDINGS OF FACT
1. The subject water tower site is located on property owned by the Minnetonka
School District and is presently zoned R -IA, single - family residential. The site is occupied by
the Shorewood water tower, communications equipment shelters and a communications
equipment enclosure at the base of the tower.
2. Land use and zoning surrounding the site are single-family residential zoned R.-
lA, Single - Family Residential.
3. Section 1201.23, Subd. 4a. of the Shorewood City Code provides for
governmental and public regulated utility buildings and structures to be constructed within the R-
1A zoning district by Conditional Use Permit, subject to certain requirements of screening and
landscaping when abutting a residential use in a residential district.
4. The Applicant's activity serves a valuable purpose in the community, and there is
a need for the activity and services provided by the Applicant in order that the community be
properly serviced, and that the Federal Telecommunications Act requires that local governments
accommodate telecommunication services within their boundaries.
5. The proposed use of the land is in accordance with the official City
Comprehensive Plan and will not adversely affect the general welfare, public health and safety of
the community.
6. The approval of the proposed Conditional Use Permit should be in the form of a
lease agreement setting forth the rights and obligations of the parties to the Agreement.
CONCLUSIONS
The Applicant's application for a Conditional Use Permit for the installation of an
antenna array as shown on Exhibit C of the Water Tower Space Lease Agreement, attached
hereto as Attachment 1, is hereby granted, subject to the provisions of City Code, Section
1201.04, Subd. l.d.(1), and the following additional conditions:
1. The grant and term of the Conditional Use Permit shall comply and be subject to
all of the terms and conditions set forth in the Water Tower Space Lease Agreement attached
hereto and made a part hereof as Attachment I.
2. The attachments to said Water Tower Space Lease Agreement consisting of
Exhibit A, Tower Site Legal Description; Exhibit B, Ground Equipment; and Exhibit C,
Equipment to be Placed on the Water Tower, shall be considered as a part of and a condition to
the approvals and grants herein.
The site shall be restored and landscaped to its present condition.
4. The Mayor and City Administrator /Clerk are hereby authorized to execute said
Water Tower Space Lease Agreement on behalf of the City Council.
5. This resolution, together with the attachments hereto, be filed and recorded with
the Hennepin County Recorder or Registrar of Titles within thirty (30) days of certification
hereof.
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ADOPTED BY THE CITY COUNCIL OF THE crry OF SHOREWOOD this 14th day of
December 2009.
Christine Liz6e, Mayor
WATER TOWER SPACE LEASE AGREEMENT
THIS WATER TOWER SPACE LEASE AGREEMENT (`Agree ent ") is made as
City has an interest in certain real estate located at 5500 Old Market Road, in the City of
Shorewood, in the County of Hennepin, State of Minnesota, legally described in Exhibit A
attached hereto (the "Property ").
City owns and operates a municipal water tower on the Property (the "Tower ")
Lessee desires to enter into this non - exclusive lease to lease from City a portion of the Property
and certain space on the Tower for the purpose of installing, maintaining and operating certain
equipment therein and thereon.
NOW THEREFORE, in consideration of the mutual promises and covenants contained in this
Agreement, the parties agree as follows:
1.) TERM
(a) Initial Term The initial term of this Agreement shall commence on the earlier of June 1,
2010, or the date that Lessee begins construction on the Property (the "Commencement Date "),
and continue through December 31, 2014 (the "Initial Term "), unless sooner terminated as
provided for herein.
(b) Renewal Term(s) The term of this Agreement shall automatically renew on the same
terms and conditions herein, for up to three (3) additional and successive periods of five (5) years
each (the "Renewal Terms "), unless Lessee notifies City in writing of Lessee's intention not to
renew at least ninety (90) days before the expiration of the then current term, as provided in
Section 11 (a) below.
The Initial Term and all Renewal Terms are collectively referred to herein as the "Term."
2.) DEMISE OF SPACE City hereby lets and demises unto Lessee, and Lessee hereby
receives and accepts from City, the following:
(a) Building Space City shall provide sufficient ground or interior space near the Tower to
accommodate the construction, maintenance and operation, pursuant to the specifications and
requirements listed in Exhibit B hereto, to house certain equipment therein (the "Building
Space ").
{ 123498_x.2} Attachment I
(b) Tower Space
(1) Initial -- City shall provide Lessee space on the Tower for the purpose of
attaching the transmitting and receiving equipment and apparatus and
facilities used in connection therewith (the "Initial Equipment ") set forth
in Exhibit C. in the locations designated in such exhibit (the "Tower
Space ").
(2) Additional Equipment and Modifications -- Any plans to: (i) modify,
change or replace the Initial Equipment; (ii) modify or change the
installation of such Initial Equipment; (iii) change the location or
frequency of all or any part of the Initial Equipment; or (iv) add any
additional equipment to the Tower, shall be submitted for City's prior
approval, and such approval will not be unreasonably withheld,
conditioned or delayed. Items (i) through (iv), inclusive, shall hereinafter
be collectively referred to as the "Additional Equipment." Lessee shall
promptly, upon demand by City, pay for an evaluation performed by an
independent structural engineer and /or a professional communications
engineer, retained by City, as City deems necessary, to determine whether
the Additional Equipment will interfere with existing or proposed
operations on the Property, and whether the Tower can structurally
support the Additional Equipment. In addition, a proportional adjustment
to the Base Rent shall be agreed upon by the parties hereto if additional
antennae (in excess of nine (9) antennas) will be installed or additional
space on the Tower is required to accommodate the Additional
Equipment. The Initial Equipment and Additional Equipment shall
hereinafter be collectively referred to as the `Equipment."
(c) Access Subject to acts of God and other occurrences beyond the reasonable control of
the parties, Lessee and its authorized agents shall have access to the Premises (as defined below)
twenty -four hours a day, seven days a week in order to maintain and operate its Equipment
thereon. Lessee shall telephonically request access to the Premises in advance, at a place
designated by the City.
The Building Space, Tower Space and all necessary easements or rights -of -way for
Lessee's access and utilities are collectively referred to herein as the "Premises."
3.) RENT
(a) Base Rent
(1) During the period from the Commencement Date through December 31,
2010, Lessee shall pay rent (the "Base Rent ") to City, for the Premises, in
an annualized amount of Eighteen Thousand and 00 /100 Dollars
($18,000.00) per year. The first installment of Base Rent will be paid by
Lessee to City prior to the Commencement Date, and all subsequent
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payments of vase Rent will be paid annually in advance, on or before
January 1 St of each year.
(2) The Base Rent shall be increased by $60.00 per month for each antenna, in
excess of six (6) antennae.
(3} Annual Adjustments -- The annualized Base Rent shall be increased as of
January 1, 2011, and each January 1" thereafter, by the greater of.
a. four percent (4 %) of the previous year's annualized Base Rent; or
b. by an amount equivalent to the increase in the Consumer Price
Index for All Urban Consumers, All Cities, All Items (1984 = 100)
(the CPI), as published by the United States Department of Labor
Statistics, or if such index shall be discontinued, the successor
index, or if there shall be no successor index, such comparable
index as mutually agreed upon by the parties hereto. To determine
the annual increase in Base Rent under this paragraph, the
amivalized Base Rent for the previous calendar year shall be
multiplied by a percentage figure, computed from a fraction, the
numerator of which shall be the CPI for the third quarter of the
preceding year and the denominator of which shall be the CPI for
the corresponding quarter one year earlier. Such fraction shall be
converted to a percentage equivalent, and shall be multiplied by
the previous year's Base Rent. City shall be responsible for
calculating all annual increases in Base Rent and for
communicating the same to Lessee by December 1 St of each year.
4.) ADDITIONAL RENT. Lessee shall pay all taxes, charges, costs and expenses that are
directly attributable to Lessee's improvements, and all damages, costs, expenses and sums that
City may incur or that may become due by reason of any default by Lessee or failure by Lessee
to comply with the terms and conditions hereof (such taxes, charges costs and expenses shall be
deemed to be "Additional Rent" and, in the event of nonpayment thereof, City shall have all
rights and remedies as hereinafter provided for failure to pay Base Rent when due).
5.) GOVERNMENTAL APPROVAL CONTINGENCY Lessee's right to use the
Premises is expressly contingent upon its obtaining, in advance, all the certificates, permits,
zoning and other approvals that may be required by any federal, state, or local authority. City
shall cooperate with Lessee in its efforts to obtain such approvals and shall take no action that
would adversely affect the status of the Premises with respect to the Lessee's proposed use
thereof. In addition, before obtaining a building permit, Lessee shall cause to be performed and
pay the reasonable cost of. (i) a radio frequency interference study performed by an
independent, qualified communications engineer selected by the City, showing that Lessee's use
contemplated herein will not interfere with any existing communications facilities upon the
Tower (the "Interference Study "); and (ii) an engineering study performed by an independent
structural engineer selected by the City, showing that the Tower is able to support the
Equipment, without prejudice to the City's use thereof (the "Structural Stability Study "). If the
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Interference Study reveals that. there is a potential for interference that cannot be reasonably
remedied by the Lessee, or the Structural Stability Study reveals that the structure is unable to
safely bear the weight of the Equipment, neither of such findings shall constitute a default by
either party hereto, but Lessee shall have the right to terminate this Agreement in accordance
with Section 11(c), below.
a Tower. City shall at all times retain exclusive title to and interest in, and control of
the Tower and the Property.
(b) Equipment Lessee shall at all times retain exclusive title to and interest in, and
control of the Equipment. The Equipment shall at all times remain the personal property of
Lessee and shall not be fixtures on the Premises.
7.) USE INSTALLATION AND NON - INTERFERENCE Lessee shall use the Premises
only for and in connection with the installation, operation, repair and maintenance of a City -
approved communications antenna facility, Equipment and cabinets and uses incidental thereto
for providing radio and wireless telecommunication services. The Equipment shall be installed
at Lessee's sole cost and expense in a manner approved by City in advance, such approval not to
be unreasonably withheld, conditioned or delayed. A government unit may be allowed to place
antennae or other communication facilities on the Tower regardless of potential or actual
interference with Lessee's use; however, if Lessee's use of the Premises or Equipment is
materially affected, Lessee may terminate the Agreement consistent with the notice provisions in
paragraph 1I of this agreement. A government unit is to include public safety agencies,
including law enforcement, fire and ambulance services. Lessee shall promptly cure any
interference caused by Lessee's Equipment to pre - existing equipment on the Tower belonging to
City, governmental units or other tenants of City, and if such interference cannot be cured within
72 hours of notice to Lessee, Lessee shall temporarily reduce power or cease the offending
operations, until a cure at full power is achieved. City covenants to use its best efforts to afford
Lessee similar protection from interference caused by the operations of any subsequent user of
the Property.
8.)
MAINTENANCE AND REPAIR
(a) Tower City shall be solely responsible for the maintenance and repair of the
Property and the Tower and keeping the same in a safe condition and fit for the use
contemplated hereby, except any damage resulting from the acts or omissions of Lessee
or its authorized agents shall be repaired by City, and Lessee shall reimburse City, upon
demand, for all reasonable costs associated with such repair. The City may, with 45 days
notice, require the Lessee to remove the Equipment for maintenance or repairs without
cost or penalty to the City. The City may provide a shorter notice if circumstances arise
that require immediate attention. The City will undertake its best efforts to cooperate to
mitigate disruption and expense to the Lessee. The City shall provide Lessee with
invoices for reimbursement of extraordinary costs as a result of the Lessee's equipment in
the course of such repairs, including, but not limited to, additional containment materials
and labor to maintain the premises during maintenance operations.
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9.) EVENTS OF DEFAULT The occurrence of any one or more of the following events
shall constitute an Event of Default under this Agreement:
(a) Failure to Pay Lessee shall fail to timely pay any amount due under this
Agreement, and such failure shall continue uncured for more than thirty (30) days after
receipt of notice thereof from City;
(b) Failure to Perform Except as otherwise stated herein, if either party shall fail to
perform any other covenant of this Agreement and does not cure or reasonably
commence and proceed diligently to cure such failure within sixty (60) days after receipt
of notice thereof from the other party; or
(c) Bankruptcy (i) Lessee shall make an assignment for the benefit of creditors;
(ii) Lessee files a voluntary petition under the Bankruptcy Code of the United States or
any state statute similar thereto, or Lessee be adjudged insolvent or a bankrupt pursuant
to an involuntary petition, and such petition is not dismissed within sixty (60) days of
filing; (iii) a receiver or trustee is appointed for the property of Lessee by reason of
insolvency of Lessee and such receiver or trustee is not discharged within 60 days;
(iv) any department of the state or federal government, or any officer thereof duly
authorized, takes possession of the business or property of Lessee by reason of the
insolvency of Lessee; (v) Lessee continues in possession without the appointment of a
receiver or trustee under Chapter 11 of the Bankruptcy Code; or (vi) Lessee is the subject
of any petition or proceeding related to relief from creditors.
10.) REMEDIES ON DEFAULT If an Event of Default occurs, the non - defaulting party
may at any time thereafter:
(a) Terminate this Agreement Terminate this Agreement pursuant to Section 11(b)
below; and /or
(b) Other Available Remedies Pursue any other available remedies at law or in
equity that may appear necessary or desirable to enforce performance and observance of
any obligation, agreement, or covenant of this Agreement.
11.) TERMINATION Upon termination of this Agreement, except if terminated by reason
of an Event of Default, Lessee shall be entitled to a refund of any Base Rent paid in advance.
This Agreement may be terminated pursuant to any of the following provisions:
(a) By Notice Lessee may elect to terminate this Agreement, without cause, as of
the end of the Initial Term or any subsequent Renewal Term by giving notice to the City
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at least ninety (90) days prior to the expiration of the Initial Term or any subsequent
Renewal Term.
(c) By Failure of Governmental Approval Contingency Lessee may terminate this
Agreement upon sixty (60) days notice if the Governmental Approval Contingency is not
satisfied as a result of an adverse finding in either the Interference Study or the Structural
Stability Study.
(d) By Lessee Lessee may terminate this Agreement with cause, if: (i) Lessee gives
City at least sixty (60) days notice of Lessee's exercise of this provision; (ii) Lessee is not
in default under the terns hereof; (iii) Lessee pays City all outstanding amounts that are
due and payable hereunder as of the termination date; and:
(1) Lessee is unable, after exerting all reasonable efforts, to obtain and /or
maintain any license, permit or other governmental approval necessary for
the construction and /or operation of the Equipment or Lessee's business;
or
(2) During any of the Renewal Terms (if any), if the Premises or Equipment is
or becomes unacceptable under Lessee's design or engineering
specifications for its Equipment or the communications system to which
the Equipment belongs.
(e) By City City may terminate this Agreement if City gives Lessee at least sixty
(60) days notice of City's exercise of this provision, and:
(1) City's Council decides, for any reason, to redevelop the Property, or any
portion thereof, in a mauler inconsistent with the continued use of the
Premises by Lessee, and/or discontinues use of the Tower for all purposes.
The City will undertake its best efforts to provide notice of at least one
year to Lessee;
(2) An independent structural engineer determines that the Tower is
structurally unsound, after considering all reasonable factors, including
without limitation, the age of the Tower, damage or destruction of all or
any part thereof, and factors relating to condition of the Property;
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(3) After considering relevant engineering studies, City reasonably determines
that a City of Shorewood governmental unit as provided for in Section 7
herein cannot find another adequate location on the Tower, or the
Equipment unreasonably interferes with the City of Shorewood
governmental unit's use of the Tower; or
(4) City reasonably determines that Lessee has failed to comply with
applicable ordinances, or state or federal law, or any conditions attached to
government approvals granted thereunder, after a public hearing before the
City's Council.
(f) By Destruction Either party may terminate this Agreement upon thirty (30) days
notice, if, as a result of any natural disaster, act of God or other occurrence beyond the
control of the parties hereto, all or any part of the Premises is destroyed or damaged to
the extent that it is reasonably determined that such will be unusable for more than one
hundred twenty (120) days. If this Agreement is not so terminated, City shall undertake
to repair or replace the Premises within a reasonable period of time, and if such damage
renders the Premises unfit for Lessee's use, and Lessee, by reason thereof, discontinues
its use of such facilities, the Base Rent payments due hereunder shall abate in proportion
to that part of the Premises that is rendered unusable, until such time as the Premises is
again operational.
12.) COMPLIANCE WITH LAW
(a) Lessee Lessee shall (i) acquire, at Lessee's sole expense, all necessary federal,
state and local certificates, permits, licenses, zoning and other approvals that are
necessary for Lessee to operate and maintain the Equipment on the Premises, as
contemplated in this Agreement, and (ii) comply with all federal, state and local laws,
and regulations that are applicable to such use of the Premises.
(b) City Subject to Section 12(a) above, City shall: (i) acquire, at City's expense, all
necessary federal, state and local certificates, permits, licenses, zoning and other
approvals that are necessary for City to operate and maintain the Tower, and (ii) comply
with all federal, state and current local laws, and regulations that are applicable to the
operation and maintenance of the Tower.
13.) TAXES Lessee shall be solely responsible for charges, levies, taxes, assessments and
similar impositions, directly attributable to Lessee's Equipment, the Building Space, or that arise
out of Lessee's use of the Tower.
14.) UTILITIES Lessee shall be responsible for payment and separate metering of all utility
services directly with the utility providers for services consumed by Lessee's operations at the
Premises. City will reasonably cooperate with Lessee's efforts to improve existing utilities on
the Property for Lessee's use, or to collect the Equipment to existing utilities on the Property,
and City will execute any easement, right -of -way or similar agreement that Lessee or a utility
service provider may reasonably request for any such purposes.
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16.) REPRESENTATIONS AND WARRANTIES Without limiting the scope of
subparagraph 15 above, Lessee will be solely responsible for and will defend, indemnify, and
hold City, its agents, and employees harmless from and against any and all claims, costs, and
liabilities, including reasonable attorney's fees and costs, arising out of or in connection with the
cleanup or restoration of the Premises associated with the Lessee's use of Hazardous Materials.
For purposes of this Agreement, "Hazardous Materials" shall be interpreted broadly and
specifically includes, without limitation asbestos, fuel, batteries or any hazardous substance,
waste, or materials as defined in any federal, state, or local environmental or safety law or
regulations including, but not limited to, CERCLA, other than such materials used in the
ordinary course of Lessee's business in accordance with all applicable laws and regulations.
City represents that it has no knowledge of any substance, chemical or waste on the City's
Property that is identified as hazardous, toxic or dangerous in an applicable federal, state or local
law or regulation.
17.) INSURANCE
(a) Coverage During the Term, Lessee shall, at its sole expense, obtain and keep in
force comprehensive general liability coverage with limits of not less than One Million
Five Hundred Thousand Dollars ($1,500,000) each occurrence; One Million Five
Hundred Thousand Dollars ($1,500,000) personal injury; One Million Five Hundred
Thousand Dollars ($1,500,000) general aggregate, and One Million Five Hundred
Thousand Dollars ($1,500,000) products and completed operations aggregate, covering
Lessee's work and operations at or in connection with the Premises, and naming City as
an additional insured.
(b) Evidence of Coverage Not less than ten (10) days prior to the expiration of any
then current policy, Lessee shall deliver to City, a certificate of insurance showing that
Lessee maintains all the insurance required under this Agreement. Such policy shall also
provide that City must receive thirty (30) days' notice of any reduction in coverage,
expiration or cancellation thereof, and shall be issued by a company reasonably
satisfactory to City.
(c) Landlord's Insurance City shall maintain commercial general liability insurance
against liability for personal injury, death or damage arising out of City's use or
management of the Structure by City, its employees or agents, with a limit of $1,500,000
for any number of claims arising out of a single occurrence. City shall also maintain fire
and extended coverage insurance insuring the Tower for its full insurable value (subject
to reasonable deductibles).
18.) ASSIGNMENT This Agreement and Lessee's rights and duties established hereunder,
may be sold, assigned, or transferred at any time by Lessee to Lessee's parent, affiliate or
subsidiary, or any party that merges or consolidates with Lessee or its parent, or any party that
purchases or otherwise acquires all or substantially all of Lessee's stock or asset, without notice
to or the consent of City. Subject to the foregoing sentence, Lessee shall not assign this
Agreement or any of the rights or duties established hereunder without the prior written consent
of City. City's consent shall not be unreasonably withheld, conditioned or unduly delayed. For
purposes of this section, an "affiliate" or "subsidiary" means an entity that owns greater than a
fifty percent (50 %) interest or any entity which is controlling, under the control of or controlled
by a common entity. City hereby consents to the assignment of its rights under this Agreement,
as collateral, to any entity that provides financing for the purchase of the equipment to be
installed at the Premises.
19.)
CONDEMNATION
(a) Entire Premises If, during the Term, the entire Premises shall be taken as a result
of the power of eminent domain, condemnation proceedings, or other like proceedings
(the "Proceedings "), this Agreement and all right, title, and interest of Lessee hereunder
shall cease and come to an end on the date of taking of possession pursuant to the
Proceedings.
(b) Portion of the Premises If, during the Term, less than the entire Premises shall
be taken by the Proceedings, this Agreement shall, upon taking of possession pursuant to
the Proceedings, terminate as to the portion of the Premises so taken, and either party
may elect to terminate this Agreement with respect to the remainder of the Premises, as
of the date of taking such possession, by giving the other party at least thirty (30) days
notice. If neither City or Lessee elects to terminate this Agreement as to the remainder of
the Premises, this Agreement shall continue in full force and effect, but the Base Rent
shall be reduced pro rata in accordance with the percentage of value of the Premises so
taken compared with the total value of the Premises immediately prior to such taking.
Nothing herein contained shall affect Lessee's obligation to pay in full the Additional
Rent. City shall, however, at City's sole cost and expense, restore that portion of the
Premises not so taken to a complete architectural unit for the use and occupancy of
Lessee.
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20.) QUIET ENJ 1 ENT Except as otherwise provided for herein, Lessee shall have
quiet and peaceable possession of the Premises throughout the Term, and City will not
intentionally disturb Lessee's occupancy thereof as long as Lessee is not in default hereunder.
Notwithstanding the foregoing, Lessee's right to quiet enjoyment shall not apply to events
beyond the control of City, or interference during periods of normal and extraordinary repairs
and maintenance of the Property or Tower by City.
21.) REMOVAL AND SURRENDER Unless otherwise agreed to in writing by City,
within a reasonable period of tune, not to exceed sixty (60) days, after the expiration or earlier
termination of the Term, Lessee shall, at Lessee's sole expense, remove all of the Equipment
from the Premises, and restore and surrender the Premises to City in good condition without
damage thereto, reasonable wear and tear and casualty excepted. If Lessee fails to timely
remove as required herein: (i) the Equipment shall be deemed abandoned and become the
property of City (subject to the interests of other persons or entities disclosed in writing to City
prior to the date of hereof); and (ii) City may take reasonable steps to remove the same and
restore the Premises, and Lessee shall be responsible for, and pay upon demand by City, all
reasonable costs associated with such removal and restoration.
22.) BINDING EFFECT This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, assigns and successors in interest.
23.) LIENS Lessee shall not permit any mechanics or other liens to be filed or placed
against the Premises or any part thereof by reason of work, services, materials supplied to or
claimed to have been supplied to Lessee, and if such lien is filed against the Premises at any
time, Lessee shall cause the same to be discharged of record by paying the amount claimed to be
due, shall deposit with the court an amount equal to the amount claimed, or shall post bond for
the same, within thirty (30) days of the date of such filing. If Lessee shall fail to discharge such
lien or to so deposit such amount within such period, then, City may, but is not hereby required
to, take reasonable steps to discharge such lien, and Lessee shall reimburse City, upon demand,
for all reasonable costs incurred by City in connection with such discharge.
24.) ADDITIONAL BUILDINGS City shall have the right to permit the construction of
other buildings and equipment on the Property, pursuant to the specifications and requirements
set forth in Exhibit B, and Lessee shall permit such buildings to be placed immediately on the
Property; provided, however, that no such other buildings or equipment will interfere with
Lessee's ability to use or access the Premises and Equipment.
25.) NOTICE Any notice, election, request, or other communication herein required or
permitted to be given or served shall be delivered to the other party hereto (with receipt obtained
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therefor), or mailed. by United States certified. mail, return receipt requested, postage prepaid, or
sent by a nationally recognized. overnight courier service, properly addressed to such other party
at the following addresses:
If to Lessee
Clear Wireless LLC
Attn: Site Leasing
4400 Carillon Point
Kirkland, WA 98033
with an additional copy to:
Clear Wireless LLC
Attn: Legal Department
4400 Carillon Point
Kirkland, WA 98033
If to City
City of Shorewood
5755 Country Club Road
Shorewood, Minnesota 55331
Attention: City Administrator
with an additional copy to:
Kennedy & Graven
Attn: Mary Tietjen, City Attorney
470 U.S. Bank Plaza
200 South 6"' Street
Minneapolis, MN 55402
Unless and until changed by notice as herein provided, notices and communications shall
be addressed to the above - listed addresses. Each such mailed notice or communication shall be
deemed to have been given to, or served upon the party to which addressed, (i) on the date the same
is personally delivered or (ii) on the date set forth on the certified receipt. All payments required by
this Agreement shall be made to City at the address designated above, or as may be hereafter
designated.
26.) MISCELLANEOUS
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(b) Waiver The waiver by either party of a breach or violation of, or failure of either
party to enforce, any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach or violation or relinquishment of any rights hereunder.
(c) Entire Agreement and Modification This writing represents the entire agreement
and understanding of the parties with respect to the subject matter hereof and supersedes
any and all previous agreements of whatever nature between the parties with respect to
the subject matter. This Agreement may not be altered or amended except by an
agreement in writing signed by both parties.
(d) Headings; Exhibits The headings of sections in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation. The Statement of Facts contained herein, and all schedules, exhibits,
addenda or attachments referred to herein are incorporated in and constitute a part of this
Agreement.
(e) Severability If any part of this Agreement is invalid or unenforceable under
applicable law, that part shall be ineffective only to the extent of such invalidity or
unenforceability without in any way affecting the remaining parts of the provision or this
Agreement.
(f) Sublet /Sublicensing Prohibited Subject to Section 18, Lessee shall not sublease,
license or otherwise make the Premises available to others for use in any manner.
(g) Construction Both parties hereby acknowledge that they participated equally in
the negotiation and drafting of this Agreement and that, accordingly, no court construing
this Agreement shall construe it more stringently against one party than against the other.
(h) Counterparts This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
(i) Trade Term Usage Words used in this Agreement shall be given the meanings
that they normally possess in the wireless communications industry, unless otherwise
specifically defined herein.
0) Recording At the option of either party, this Agreement, or a mutually agreeable
Memorandum hereof, may be recorded in the real property records of the county where
the Premises is located.
12
(k) A uthority . City represents and warrants that City has full authority to enter into
and sign this Agreement and has good and marketable title to the Property.
(1) Alterations The Lessee shall make no alternations to the Equipment, facilities
and antennas as depicted in Exhibits B and C without the written consent of the City,
which will not be unreasonably withheld, conditioned or delayed.
(m) Waiver of Landlord's Liens City waives any lien rights it may have, statutory or
otherwise, regarding Lessee's Equipment, all of which shall be deemed personal
property, whether considered real or personal property under applicable state laws.
13
IN WITNESS WHEREOF', the parties have executed this Agreement as of the date
indicated on page I hereof.
LESSEE:
Clear Wireless LLC
M
M
City of Shorewood
B
Christine Lizee
Its: Mayor
M
iW /Administrator
STATE OF MINNESOTA )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me on , 20, by
, the of Clear Wireless LLC, a Nevada limited liability
corporation, on behalf of corporation.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on , 20_,
by Christine Lizee and Brian Heck, the Mayor and City Administrator, respectively, of the City
of Shorewood, a Mimiesota municipal corporation, on behalf of the corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Malkerson Gilliland Martin LLP (TJK)
220 South Sixth Street, Suite 1900
Minneapolis, MN 55402
Timothy J. Keane. Attorney
Reviewed and edited by Mary Tietjen, City Attorney
14
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