97-005CITY OF SHOREWOOD
RESOLUTION NO. 97 -0 5
A RESOLUTION GRANTING A CONDITIONAL USE PERMIT TO
SPRINT SPECTRUM
WHEREAS, Sprint Spectrum, L.P. (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 an
area along Highway 7 in 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 southeast
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 installation of a 20 -foot by 20 -foot communications equipment enclosure and the
required space on the water tower pursuant to a long -term lease; 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
26 September 1996 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 1 October 1996, 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 28 October 1996, 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 preliminary 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 T.H. 7 and is presently zoned R -IA,
single - family residential. The site is occupied by the Shorewood water tower, a small bituminous
parking area, and communications equipment owned by AT &T Cellular.
2. That the land use and zoning surrounding the site are as follows:
north and west -State Highway 7 no.w., then single and two- family homes;
zoned R -2A
east - Commercial and two - family residential; zoned P.U.D.
south - Cemetery and single - family homes; zoned R -lA and
P.U.D., respectively.
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 enclosure as shown on Exhibit 1 and antenna array as shown on
Exhibit 2 is hereby granted, subject to the provisions of City Code, Section 1201.04, Subd.
l.d.(1), 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 the Water Tower Space Lease Agreement attached
hereto and made a part hereof as Exhibit 3.
2. That the attachments to said Water Tower Space Lease Agreement consisting of
Exhibit A, Tower Site Legal Description; Exhibit B, Specifications and Requirements; Exhibit C,
Equipment Space; and Exhibit D, Frequencies, shall be considered as a part of and a condition to
the approvals and grants herein.
3. That the site shall be restored and landscaped in accordance with the approved
landscape plan shown on Exhibit 4. 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 4, 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.
4. That the Mayor and City Administrator /Clerk are hereby authorized to execute said
Water Tower Space Lease Agreement on behalf of the City Council.
5. That this resolution, together with the Exhibits attached 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 CITY OF SHOREWOOD this 13th
day of January, 1997.
ATTEST:
Tom Dahlberg, M yor
T
t � !
Jan s Hurm, City Administrator /Clerk
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WATER TOWER SPACE LEASE AGREEMENT
THIS WATER TOWER SPACE LEASE AGREEMENT (the Agreement) is made as of
January _L7_, 1997 (the Effective Date), between Sprint Spectrum L.P., a Delaware limited
partnership, 2900 Lone Oak Parkway, Suite 140, Eagan, Minnesota 55121 (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 5500 Old Market 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, 2001 (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 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:
(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 for operating at
the frequencies listed in Exhibit D, and apparatus and facilities used in
connection therewith (the Initial Equipment), 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."
(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."
3.) RENT
(a) Base Rent
(1) Effective Date Through December 31, 1997 -- During the period from the
Effective Date through December 31, 1997, Lessee shall pay rent (the Base
Rent) to City, for the Leased Premises, in an annualized amount of Twelve
Thousand and No /100 Dollars ($12,000) 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 Twelve Thousand and No /100
Dollars ($12,000) 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
January 1, 1998, 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, 1998, 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 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.
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
4.
demand, for all reasonable costs associated with such repair. 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.
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.) TERNIINATION 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 ninety (90) 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 parry, the other parry 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;
(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 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;
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(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 sixty (60) 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 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.
7.
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 parry 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
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 parry 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 parry 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.
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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.
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
10.
of hereof); and (ii) City may take reasonable steps to remove the same and 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
Sprint Spectrum L.P.
2900 Lone Oak Parkway, Suite 140
Eagan, Minnesota 55121
Attention: Karl Brusen
with an additional copy to:
Sprint Spectrum L.P.
4900 M ainstreet, 5th Floor
Kansas City, M 0 64112
Attention: Business Law Group
11.
(b) If to City:
City of Shorewood
5755 Country Club Road
Shorewood, Minnesota 55331
Attention: James C. Hurm, City Administrator
with an additional copy to:
Larkin, Hoffinan, Daly & Lindgren, Ltd.
1500 Norwest Financial Center
7900 Xerxes Avenue South
Bloomington, Minnesota 55431
Attention: Tim 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 havebeen given to, or served upontheparty 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,
12.
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 Leased Premises available to others for use in any manner.
(g) Administration and Maintenance Fee. Placement of communications equipment
on the existing infrastructure, owned by the City, will cause the City to bear additional
costs for routine maintenance of existing infrastructure. Therefore, the Lessee agrees to
pay a one time Administration and Maintenance Fee to the City of Shorewood for the
amount of three thousand five hundred dollars ($3,500), prior to issuance of a certificate
of occupancy.
(h) 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 parry than against the other.
(i) 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.
0) 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.
(k) 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.
(1) 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.
(m) 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.
13.
(n) 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.
(o) 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.
14.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
indicated on page 1 hereof.
LESSEE: CITY:
Sprint Spectrum L.P. City of Shorewood
By: --z— By: c
Its: ��\ 1� , t'��,.;�, n Its: "Mayor
By:
Its: City Admit.
STATE OF
ss.
COUNTY OF ��k�+ )
The foregoing instrument was acknowledged before me on 1997, by
the A),rtc-to,- r- Qn;, -ecT of Sprin Spectrum L.P., a
Delaware limited partnership, on behalf of the limited partnership.
otary Public
STATE OF ) LYNDA L. RICHARDSON
N OTARY PUBLIC - MINNESOTA
ss. HENNEPIN COUNTY
COUNTY OF )
�,�� My Commission Expires .tan. 31, 2000
The foregoing instrument was acknowledged before me on j y� �.t r jam, 1997,
by -, _ !4t ( and �J--a'Kk-ttLI Mayor and City Administrator,
respectively, of the City f Shorewood, a Minnesota municipal corporation, on behalf 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: (612) 835 -3800
(TJK)
0263998.01
s
TESA L �g
P(W.�
ti EXPiru JIM 31, 2000
I1
15.
t
1 - - - -- 200.00 - — — — — — -- — — — — — — — — —
I
— — — — —
— — — -- — — — — — —
J
J
2
Pnoposed Ingress and
Egress Easement -
14'.s ruce \
s
relocated
I 14' spruce'
relocated / 200 019 \\
2' s 'race:'
9� ° \
\ R�28.00
I re -mated
I
1 111'
r� tt
PLE
„t,
I
1 i 1
11' ATAPLf I
o � cz `}
v� e
I 6' spruce
Toter
10
—
11 MAPLE
S, t
th
\
To wer
n v
6' spruce 2 '
tt
O
)
*
Leased Premises,` Ln
o
,
/
I 0.0
I 0 79 57 fir°,
I
I • Spruc �
6' arbor vitae
20.00
'04.... W
057
E
12.5' Spmcs
I
\.
7T' Spruce
gyp, �R �
Lo. 14
N p
I i
ILLUSTRATIVE LANDSCAPE PLAN
PLANT LIST
PLANTING
SPECIES HEIGHT INTERVAL
ARBOR VITAE 6' 3
SPRUCE 6' see illustrative
landscape plan
Exhibit 4
• EXHIBIT A
Attached to and Forming a part of the
Water Tower Space Lease Agreement
between
Sprint Spectrum L.P., as Lessee
and City of Shorewood, as City
Legal Description - Premises
Lot 7, Block 2, Rogene Heights
Diagram - Premises
[ATTACH DIAGRAM HERE]
•
A -1
Lease.doc
0 EXHI BIT B
Attached to and Forming a part of the
Water Tower Space Lease Agreement
between
Sprint Spectrum L.P., as Lessee
and City of Shorewood, as City
Equipment to be Placed Within The Tower
is
M. 11
Lease.doc
• EXHIBIT C
Attached to and Forming a part of the
Water Tower Space Lease Agreement
between
Sprint Spectrum L.P., as Lessee
and City of Shorewood, as City
Equipment to be placed on the Tower, Location(s) thereon and Operat F requencies:
•
C -1
Lease.doc
• EXMrr D
Attached to and Forming a part of the
Water Tower Space Lease Agreement
between
Sprint Spectrum L.P., as Lessee
and City of Shorewood, as City
•
• D -1
Lease.doc
16171GERSI +.AD 12_C4
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