00-042CITY OF SHOREWOOD
RESOLUTION NO.00- 042
A RESOLUTION GRANTING A CONDITIONAL USE PERMIT TO
AT&T WIRELESS SERVICES
WHEREAS, AT&T Wireless Services (Applicant) is a communications common carrier
licensed by the Federal Communications Commission to provide personal communications
services to the Minneapolis/St. Paul metropolitan area; and
WHEREAS, the Applicant has determined that, in order to provide uninterrupted
personal communications services to the western segment of its territory, it requires an antenna
site in the westerly one-half of the City of Shorewood; and
WHEREAS, the Applicant has therefore applied for a Conditional Use Permit for the
construction of a communications equipment enclosure on the site of the Shorewood west end
water tower and proposes to install as many as twelve (12) communications antennae on the
water tower itself, and
WHEREAS, the Applicant proposes to lease from the City of Shorewood the necessary
premises for the construction of a 9-foot by 15-foot communications equipment building and the
required space on the water tower pursuant to a long-term lease on a portion of the property
• legally described as:
"The north 100.00 feet of the south 452.50 feet of the east 100.00 feet of the west
1057.50 feet of the Southeast Quarter of the Northeast Quarter of Section 32, Township
117, Range 23, Hennepin County, Minnesota. 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
2 March 2000, which memorandum is on file at City Hall; and
WHEREAS, the Applicant's request has been reviewed by the City Engineer, and his
recommendations have been duly set forth in a memorandum to the Planning Commission dated
3 March 2000, which memorandum is on file at City Hall; and
WHEREAS, the Applicant's request has been reviewed by the City's Consulting
Telecommunications Engineer, and his recommendations have been duly set forth in a letter to
the City Engineer, dated 1 March 2000, which letter 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 7 March 2000, 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 24 April 2000, at which time the City Planner's and City Engineer's
memoranda, the Consulting Engineer's letter, and a letter from the Minnetonka School District
were 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. That the subject water tower site is located on the Minnewashta Elementary
School property and is presently zoned R-lA, single-family residential. The site is currently
occupied by the Shorewood water tower, an equipment shelter owned by American Portable
Telecom, the Minnewashta Elementary School, its parking areas and playground facilities.
2. That the land use surrounding the site is single-family residential, zoned R-IA.
3. That 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-
lA zoning district by Conditional Use Permit, subject to certain requirements of screening and
landscaping when abutting a residential use in a residential district.
• 4. That 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 personal communications services within their boundaries.
5. That 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. That 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
That the Applicant's application for a Conditional Use Permit for the construction of a
communications equipment building as shown on Exhibit A and antenna array as shown on
Exhibit B is hereby granted, subject to the provisions of City Code, Section 1201.04, Subd.
l.d.(1), the recommendations of city staff, the City's telecommunication consultant, and the
following additional conditions:
1. That the grant and term of the Conditional Use Permit shall comply and be subject
to all of the terms and conditions set forth in a Water Tower Space Lease Agreement to be
. negotiated between the City and the Applicant.
2
2. That the site shall be restored and landscaped in accordance with the approved
landscape plan shown on Exhibit C. For the purpose of assuring and guaranteeing to the City
that the landscape improvements to be constructed, installed and furnished by the Applicant,
shall be completed according to the plans shown on Exhibit C, the Applicant agrees to escrow
with the City a cash deposit or provide the City with an irrevocable letter of credit approved by
the City in an amount equal to 150% of the total cost of said improvements. Said escrow deposit
or letter of credit shall remain in effect for a period of two growing seasons following the
completion of the required improvements. The said escrow deposit or letter of credit may be
reduced in its amount or replaced by a maintenance bond at the discretion of the City upon
acceptance by the City of the improvements.
3. That the Water Tower Space Lease Agreement shall contain provisions allowing
the Applicant to sublease part of the proposed equipment shelter to a future telecommunications
carrier, subject to approval by the City of Shorewood.
4. That permanent power is to be provided to the equipment building prior to
operation of the telecommunication facilities. The use of portable generators shall be limited to
emergency power outage situations only.
5. That this resolution, together with the Exhibits attached hereto and the Water
Tower Space Lease Agreement, be filed and recorded with the Hennepin County Recorder or
• Registrar of Titles within thirty (30) days of certification hereof.
ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 24th day of
April 2000.
LOVE, MAYOR
ATTEST:
XL'e�& / ' llzsa�
BRADLEY J. SEN, ACTING CITY ADMINISTRATOR
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N/NNEAPOL/S• WNNESOTA 55421
26352 SMITHTOWN ROAD SHOREWOOD MN
PHONE (612) 571-2500 FAX 16121 571-1168
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IBOUTH LAKE MINNETONKA (SHOREWOOD) WATER TOWER SITE
ULTEIG ENGINEERS, INC.
52O1 FIST M TN ROAD www.ultelp.com
SLUE 308
AWMAPMX, ANAWSOTA $5421LRJ
LIBRARY SCALE
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Exhibit B
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Shorewood Water Tower
Shorewood, Minnesota
AT&T Wireless Shelter
Landscape Plan
WATER TOWER SPACE LEASE AGREEMENT
BY AND BETWEEN
THE CITY OF SHOREWOOD
AND
AT&T WIRELESS SERVICES OF MINNESOTA
THIS WATER TOWER SPACE LEASE AGREEMENT (the Agreement) is made as
of May 1, 2000 (the Effective Date), between AT&T Wireless Services of Minnesota, a Nevada
corporation, 2515 24th Avenue South, Minneapolis, MN 55406 (Lessee); and City of
Shorewood, a Minnesota municipal corporation, 5755 Country Club Road, Shorewood,
Minnesota 55331 (City).
STATEMENT OF FACTS
City owns certain real estate located at 26352 Smithtown Road, in the City of Shorewood, in
the County of Hennepin, State of Minnesota, legally described and diagrammed in Exhibit A
hereto (the Premises).
City owns and operates a municipal water tower on the Premises (the Tower).
Lessee desires to enter into this non-exclusive lease to lease a portion of the Premises 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 term of this Agreement shall commence on the Effective Date,
and continue for a period of five (5) years, through December 31, 2005 (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 periods of five (5) years
each (the Renewal Terms), unless Lessee notifies the City in writing of Lessee's intention
not to renew this Agreement at least one hundred eighty (180) days prior to the expiration
of the existing terms, or the Agreement is earlier terminated as provided for herein.
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:
0
(a) Building_ Space. City shall provide sufficient space near the Water Tower to
• accommodate the construction, maintenance and operation, pursuant to the specifications
and requirements listed in Exhibit B hereto, to house certain equipment therein, including
without limitation, the equipment listed in Exhibit C hereto (the Equipment Space).
(b) Tower Space.
(1) Initial -- City shall provide space on the Tower for the purpose of attaching
the transmitting equipment in the locations 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 Equipment; (ii) modify or change the installation of
such Equipment; (iii) change the location or frequency of all or any part of
the Equipment; or (iv) add any additional equipment to the Tower, shall be
submitted for City's prior approval. 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 Premises, and whether the Tower can
structurally support the Additional Equipment. In addition, proportional
adjustment to the Base Rent shall be agreed upon by the parties hereto, if
additional antennae 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." Notwithstanding the foregoing, the Lessee
may replace existing equipment of the same size and capacity without
prior City approval.
(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
twenty-four hours a day, seven days a week in order to maintain and operate its
Equipment thereon. Lessee shall request access to the Premises in advance, at a place
designated by the City.
The Building Space and Tower Space are collectively referred to herein as the "Leased
Premises."
2.
3.) RENT.
• (a) Base Rent.
(1) Effective Date Through December 31, 2000 -- During the period from the
Effective Date through December 31, 2000, Lessee shall pay rent (the Base
Rent) to City, for the Leased Premises, in an annualized amount of
Eighteen Thousand and No/100 Dollars ($18,000) per year pro rated
(based upon a 360 day year basis). The nonrefundable annual payment for
such period shall be paid in full, in advance of the Effective Date.
(2) Each Full Calendar Year Thereafter -- During the first full calendar year of
the Initial Term, Lessee shall pay Base Rent to City, for the Leased
Premises, in an annualized amount of Eighteen Thousand and No/100
Dollars ($18,000) per year commencing on and shall be payable on the
Effective Date. For the remainder of the Term, Lessee shall pay Base Rent
to City, for the Leased Premises, in an annualized amount (as adjusted
pursuant to Section 3(a)(3) below) payable in advance commencing on
June 1, 2000, and continuing on January 1 of each calendar year thereafter,
through the remainder of the Term. The Base Rent shall be adjusted at the
rate of $60.00 per month for each antenna in excess of nine antennae.
(3) Annual Adjustments -- The annualized Base Rent shall be increased as of
• January 1, 2000, and each year as of January 1 thereafter, by the greater of:
a. five percent (5%) 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
annualized 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.
(b) Additional Rent. All taxes, charges, costs and expenses that are directly
attributable to Lessee's improvements and Lessee hereby assumes, together with all
interest and penalties that may accrue thereon, if Lessee fails to pay the same, and all
damages, costs, expenses and sums that City may incur or that may become due by reason
3.
of any default by Lessee or failure by Lessee to comply with the terms and conditions
• hereof, 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.
4.) GOVERNMENTAL APPROVAL CONTINGENCY. Lessee's right to use the
Leased 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 Leased 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 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.
5.) OWNERSHIP.
• (a) Tower. City shall at all times retain exclusive title to and interest in, and control
of the Tower and the Premises.
•
(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.
6.) USE, INSTALLATION AND NON-INTERFERENCE. Lessee shall use the
Leased Premises only for and in connection with the operation 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. 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 property is
materially affected, Lessee may terminate the Lease. A government unit is to include Public
Safety agencies, including Law Enforcement, fire and ambulance services. Lessee shall
immediately cure any such interference or, if such interference cannot immediately be cured,
shall temporarily reduce power or cease the offending operations, until a cure at full power is
achieved. Additionally, the City will require that any third party (excepting any such
governmental unit) desiring to locate communications equipment on the Tower will first cause to
be performed, by an independent, qualified communications engineer, a radio frequency
interference study, showing that the third party's use of the Tower will not interfere with the
9
operations of Lessee. Lessee shall have the right to review and approve such interference study,
• and will not unreasonably withhold or delay its approval.
7.) MAINTENANCE AND REPAIR.
(a) Tower. City shall be solely responsible for the maintenance and repair of the
Premises and the Tower in a safe condition and fit for the use contemplated hereby.
Except, however, 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. Prior to issuance of a
certificate of occupancy Lessee agrees to pay to the City the City Engineer's estimate to
powerwash the Tower. The City shall provide Lessee with copies of invoices for any
such repairs.
(b) Equipment. Lessee shall pay and be solely responsible for the maintenance and
repair of the Equipment. If Lessee fails to timely maintain or repair the Equipment as
herein required, City may, but is not hereby required to, after 30 days notice to Lessee,
take reasonable steps to maintain or repair the Equipment, and Lessee shall reimburse
City, upon demand, for all reasonable costs associated with such repair and maintenance.
In addition, at all times during the Term, all of the Equipment installed on the Tower shall
be painted the. same color as the Tower, at the sole expense of Lessee.
8.) 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, Lessee shall fail to perform
any other covenant of this Agreement and Lessee does not cure or reasonably commence
and proceed diligently to cure such failure within sixty (60) days after receipt of notice
thereof from City; or
(c) Bankruptcy. During the Term: (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; (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.
5.
9.) REMEDIES ON DEFAULT. If an Event of Default occurs, City may at any
time thereafter:
(a) Terminate this Agreement. Terminate this Agreement pursuant to Section 10(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.
10.) 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 at
least one hundred eighty (180) days prior to the expiration of the Initial Term or any
subsequent Renewal Term.
(b) By Default. Either party may terminate this Agreement as described in this
paragraph. If City or Lessee fail to perform any 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, the other party may at any time
• thereafter: (i) terminate this Agreement as of the date stated in such notice; and/or (ii)
subject to the limitations of Section 26(k) herein, 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.
•
(c) By Failure of Governmental Approval Contingency. Lessee may terminate this
Agreement 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 terms 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;
(2) The Premises is or becomes unacceptable for technological reasons
substantiated by the opinion of a radio frequency expert mutually agreed
upon by the City and Lessee at the sole expense of the Lessee;
1
(e) ByCity. City may terminate this Agreement if City gives Lessee at least one
hundred eighty (180) days notice of City's exercise of this provision, and:
(1) City's Council decides, for any reason, to redevelop the Premises, or any
portion thereof, in a manner inconsistent with the continued use of the
Leased 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 Premises;
(3) After considering relevant engineering studies, City determines that a City
of Shorewood Government Unit as provided for in Section 6 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 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 Leased Premises is destroyed or
damaged to the extent that it is reasonably determined by City 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 Leased Premises within a reasonable period
of time, and if such damage renders the Leased 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 Leased Premises that is
rendered unusable, until such time as the Leased Premises is again operational.
11.) INTERRUPTION. If the FCC determines that continued operation of the
Equipment would cause or contribute to an immediate threat to public health and/or safety
(except for issues associated with human exposure to radio frequency omissions, which is
regulated by the federal government), City may order Lessee to discontinue its operation of the
Equipment, or any part thereof. Pursuant to such order, such disconnection shall continue only
for the period that the immediate threat exists. City shall not be liable to Lessee or any other
party for any interruption of Lessee's operations at the Premises, except as may be occasioned by
the willful misconduct of City, its employees or agents. During the Term, a temporary
interruption or discontinuance of the operation of the Tower, Lessee's operations at the Premises,
or any part or combination thereof, resulting from some occurrence beyond the reasonable
7.
control of City, shall not constitute a default under this Agreement, if the length of such
• interruption or discontinuance is commensurate with the seriousness of the event that caused the
interruption or discontinuance.
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, 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.
15.) INDEMNIFICATION. Lessee and City each indemnify and hold harmless the
other and their respective elected officials, officers, employees, agents, and representatives, from
and against any and all claims, costs, losses, expenses, demands, actions, or causes of action,
including reasonable attorneys' fees and other costs and expenses of litigation arising out of the
use and occupancy of the Leased Premises by Lessee, which may be asserted against or incurred
by either party or for which either party may be liable in the performance of this Lease, except
those to the extent that the same arise from the negligence, willful misconduct, or other fault of
either party. Lessee shall defend all claims arising out of the installation, operation, use,
maintenance, repair, removal, or presence of Lessee's Antenna Facilities equipment and related
facilities on the Leased Premises.
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 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 Lease, "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
is
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
owner 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 it's sole expense, obtain and keep in
force comprehensive general liability coverage with limits of not less than One Million
Dollars ($1,000,000) each occurrence; One Million Dollars ($1,000,000) personal injury;
One Million Dollars ($1,000,000) general aggregate, and One Million Dollars
($1,000,000) 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, evidence of insurance in a form
reasonably acceptable to City. Such policy shall also provide that City must receive thirty
(30) days' notice of any alteration, 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 combined single
limits of not less than $600,000. City shall also maintain fire and extended coverage
Insurance insuring the Structure for its full insurable value (subject to reasonable
deductibles).
•
(d) Waiver of Subrogation. Notwithstanding anything in this Lease to the contrary,
each party releases the other party from all liability, whether for negligence or otherwise,
in connection with any loss covered by any policies which the releasing party carries with
respect to such property or is required to be carried hereunder, but only to the extent that
such loss is collectible under such insurance policies. Any policy required to be obtained
pursuant to this lease shall contain a waiver of subrogation in favor of the party hereto.
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 affiliate, or
subsidiary, 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 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 Leased Premises.
Q
19.) CONDEMNATION.
• (a) Entire Leased Premises. If, during the Term, the entire Leased 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 Leased Premises. If, during the Term, less than the entire Leased
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 Leased
Premises so taken, and either party may elect to terminate this Agreement with respect to
the remainder of the Leased 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 Leased 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 Leased Premises so taken compared with the total value of the
Leased 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 Leased Premises not so taken to a complete
architectural unit for the use and occupancy of Lessee.
(c) Lessee's Share of Condemnation Award. If all or any portion of the Leased
• Premises is taken, Lessee shall not be entitled to any portion of any payment or award
made in connection therewith. Lessee hereby expressly waives any right or claim to any
portion of such award or payment. Lessee shall, however, 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 Lessee on account of any and all damage to
Lessee's business, equipment and relocation costs and expenses.
C]
20.) QUIET ENJOYMENT. Except as otherwise provided for herein, Lessee shall
have quiet and peaceable possession of the Leased 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 Premises or Tower by City.
21.) REMOVAL AND SURRENDER. Unless otherwise agreed to in writing by
City, within a reasonable period of time, 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
10.
restore the Leased 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 Premises, pursuant to the specifications and
requirements set forth in Exhibit B, and Lessee shall permit such buildings to be placed
immediately on the Premises.
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 therefor), or mailed by United States certified mail, return receipt requested, postage
prepaid, properly addressed to such other party at the following address:
(a) If to Lessee:
AT&T Wireless Services of Minnesota
2515 24th Avenue South
Minneapolis, MN 55406
Attention: Real Estate Department
with an additional copy to:
AT&T Wireless Services
2729 Prospect Park Drive, Suite 200
Sacramento, CA 95670
Attention: Real Estate Department
(b) If to City:
City of Shorewood
5755 Country Club Road
Shorewood, Minnesota 55331
• Attention: Bradley J. Nielsen, Acting City Administrator
11.
with an additional copy to:
• Larkin, Hoffman, Daly & Lindgren, Ltd.
1500 Norwest Financial Center
7900 Xerxes Avenue South
Bloomington, Minnesota 55431
Attention: Timothy J. Keane, City Attorney
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.
(a) Applicable Law. The parties acknowledge that this Agreement is subject to the
provisions of applicable federal and state laws and regulations. Any obligation, duty or
provision under this Agreement that conflicts with any provision of applicable federal or
state laws or regulations, is to that extent void. This Agreement has been made, and its
validity, performance and effect shall be determined in accordance with the internal laws
of the State of Minnesota.
(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,
ilicense or otherwise make the Leased Premises available to others for use in any manner.
12.
(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. Lessee shall execute, acknowledge and deliver to the City a mutually
agreeable Memorandum of Lease which shall be recorded in the office of the Hennepin
County Recorder.
(k) Limitations on City's Liability. Notwithstanding any provisions to the contrary
contained herein, if City terminates this Agreement other than as provided in this
Agreement, or breaches this Agreement, City's liability for damages to Lessee as a result
thereof, shall be limited to the actual and direct costs of Equipment removal, relocation
and repair, and shall specifically exclude any recovery for value of the Lessee's business
as a going concern, future expectation of profits, loss of business or profit, or related
damages to Lessee; provided, however, this provision shall not prevent Lessee from
• maintaining an action to seek equitable relief.
C.
(1) Authority. City represents and warrants that City has full authority to enter into
and sign this Agreement and has good and marketable title to the Owner's Property.
(m) Alterations. The Lessee shall make no alternations to the equipment, facilities and
antenna as depicted in Exhibits B and C without the written consent of the City.
(n) Laws. This Agreement shall be construed in accordance with the laws of the State
of Minnesota. Each party agrees to furnish to the other, within (10) days after request,
such truthful estoppel information as the other may reasonably request.
13.
•
Ll
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
indicated on page 1 hereof.
LESSEE:
AT&T Wireless Services of Minnesota
By:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF )
CITY:
City of Shorewood
Its: Mayor
By: (,
Its: Acting Ci dmini trator
The foregoing instrument was acknowledged before me on J' , 2000, by
the s ,,� A9.1 f O&T Wireless Services of
Minnesota, a Nevada corporation, on tehalf of corporation.
Notary Public t,...... .
STATE OF MINNESOTA)
ss.
COUNTY OF W'P4 �itq)
The foregoing instrument was acknowledged before me on , 2000,
by Woody Love and Brad Nielsen, the Mayor and Acting City Admitfistrator, respectively, of the
City of Shorewood, a Minnesota municipal corporation, o ehalf of the corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
LARKIN, HOFFMAN, DALY & LINDGREN, Ltd.
1500 Norwest Financial Center
7900 Xerxes Avenue South
Bloomington, Minnesota 55431
Telephone: (952) 835-3800
(TJK)
0519208.01
14.
N TARY PLi^i.lC
R
my Commission Expires Jan. 31, 2005
Attached to and Forming a Part of the
Water Tower Space and Lease Agreement
Between
AT&T Wireless Services of Minnesota, as Lessee
and the City of Shorewood, as City
Legal Description — Premises
"The north 100.00 feet of the south 452.50 feet of the east 100.00 feet of the west 1057.50 feet
of the Southeast Quarter of the Northeast Quarter of Section 32, Township 117, Range 23,
Hennepin County, Minnesota."
Diagram — Premises
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DETAIL OF SHELTER EASEMENT
Exhibit B
Attached to and Forming a Part of the
Water Tower Space and Lease Agreement
Between
AT&T Wireless Services of Minnesota, as Lessee
and the City of Shorewood, as City
Ground Facilities to be Placed Outside the Water Tower
ATLT VIRELESS SERVICES
24'x2E EQUIP. BUILDING.
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Exhibit C
Attached to and Forming a Part of the
Water Tower Space and Lease Agreement
Between
AT&T Wireless Services of Minnesota, as Lessee
and the City of Shorewood, as City
Equipment to be Placed on the Tower, and Location Thereon
SECTOR ANT. TYPE H V D
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TYPICAL (6) PLACES
SECTION
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