HomeMy WebLinkAboutNovember 12, 1996
REGULAR PLANNING COMMISSION AGENDA
MONDAY, November 12,1996
1:00 p.m.
1. Call Meeting to Order:
2. Roll Call:
3. Approval of Minutes:
4. Public Hearings:
A. Case #96-107 Public Hearing to consider an amendment to the Zoning
Ordinance relating to the treatment of communications antenna and equipment
shelters.
5. Old Business:
6. New Business:
A. Zoning Ordinance Work.Elements - Updated land use.
7. Announcements and Correspondence:
A. Proposals for Planning Commissioners and Bylaw changes.
B. Suburban telecommunication,
8. Adjournment:
16200 e8W~~k Ave. S.E., Prior Lake. Minnesota ~513'72-1714 / Ph. (612) 447-4230 I Fax (612) 447-4245
AN EQUAL OPPORTC:'>itTi E:4PLOYER
PLANNING COMMISSION MINUTES
OCTOBER 28, 1996
1. C II to Order:
The Octo er 28, 1996, Planning Commission meeting was called to order by Chairman
Criego at 7:02 p.m. Those present were Commissioners Kuykendall, Stamson, Vonhof,
Wuellner and Criego, Director of Planning Don Rye, Planning Coordinator Jane Kansier,
Planner J nni Tovar and Recording Secretary Connie Carlson.
2.
Stamson
Kuykendall
V onhof
Wuellner
Criego
Present
Present
Present
Present
Present
MOTION BY WUELLNER, SECONDED BY STAMSON, TO APPROVE THE OCTOBER 14,
1996, TES AS SUBMITTED.
3.
Vote tak n signified ayes by Wuellner, Criego and Stamson. MINUTES APPROVED.
Commis ioners Kuykendall and V onhof abstained from voting.
4.
A. ASE #96-098 KELVIN RETTERA TH IS REQUESTING A VARIANCE TO
PERMIT FRONT YARD SETBACK OF 18.00 FEET RATHER THAN THE REQUIRED 2S
FEET FO THE CONSTRUCTION OF A RESIDENTIAL ADDITION ON PROPERTY
LOCATE IN THE R-l (URBAN RESIDENTIAL) DISTRICT AND THE SD (SHORELAND
OVERL Y) DISTRICT IDENTIFIED AS 16520 INGUADONA BEACH CIRCLE.
!
enni Tovar presented the staff report.
. g Department received a variance application from Dave Yearling and
Karlynn enson, who are proposing to construct a 22 by 48 foot residential addition. The
ground I vel of the proposed addition will be a garage and the upper level will be living
space co isting of a bedroom and bathroom. The lot width makes it a substandard lot
under th current Zoning Ordinance, however all other setbacks are being maintained.
The tota impervious surface with the proposed addition is 16 percent. Staff concluded
the size d physical characteristics of the lot are a hardship outside the applicant's
control abd recommend approval of the request.
MNI02I96.
PAGEl
Comments from the public:
Kelvin Retterath, 2618 Grove Lane, Mound, represented the applicants and explained the
building proposal.
Comments from Commissionen:
Stamson:
. Considering the age of the house and the fact it is a substandard lot, the current
owners have no control over the design of the house or shape of the lot, the variance
is acceptable.
. The setback falls into the character of the neighborhood.
. Hardship criteria met.
. Supportive.
Wuellner:
. Setback averaging.
. Large substandard lot - meets hardship standards.
. Good design
. Supports staff.
V onhof:
. Agrees with staff, the 4 hardship criteria have been met.
. Supports.
Kuykendall:
. Supports
. If there would have been a curve (in the road) it would have been designed
differently.
Criego:
. Tovar explained accessory structure size.
. Agrees with staff.
. Good design.
MOTION BY WUELLNER, SECOND BY STAMSON, TO APPROVE RESOLUTION 96-
35PC GRANTING TIlE 7' FRONT YARD SETBACK FROM INGUADONA BEACH CIRCLE
RA TIlER THAN TIlE REQUIRED 25 FEET . RATIONALE BEING TIlE HARDSlllP
CRITERIA HAVE BEEN MET.
Vote taken signified ayes by Wuellner, Stamson, Criego, Kuykendall and V onhof.
MOTION CARRIED.
B. CASE #96-101 HOLIDAY STATION STORE REQUESTING MULTIPLE SIGN
VARIANCES FOR TIlE BUILDING LOCATED AT 16800 DULUTH AVENUE.
MNI02896.DOC
PAGE 2
Planner J nni Tovar distributed a letter from the applicant requesting to withdraw the
applicatio .
C. C SE #96-089 CONSIDER AN AMENDMENT TO TITLE 5 (ZONING
REGULA ONS) AND TO THE PRIOR LAKE ZONING ORDINANCE 83-6 REVISING THE
DEFINITI N AND THE ALLOWABLE AMOUNT OF IMPERVIOUS SURF ACE ON A
RESIDEN AL LOT IN THE SHORELAND DISTRICT.
Commiss oner Criego read the Opening Statement for public hearings. A sign-up sheet
was circu ated to the public in attendance.
Planning oordinator Jane Kansier presented the staff report. The amendment to the
Zoning 0 dinance is to revise the defInition of Impervious Surface. The second part of
the amen ent is to allow an increase in the amount of impervious surface on a lot of
record wi the use of special techniques. At a recent meeting, the Planning
Commiss oners discussed whether or not this defInition included gravel driveways.
While gr vel driveways will become impacted and effectively impervious with frequent
use, the d fInition includes only paved driveways. The Planning Commission directed
staff to pr pare an amendment to the Zoning Ordinance which would include gravel
driveway as impervious surface.
The prop sed amendment revises the defInition of impervious surface to include "all
driveway and parking areas, whether paved or not". This language recognizes gravel
driveway become impacted with frequent use and are effectively impervious. It also
takes into consideration the fact there are no permits required for paving a gravel
driveway so a change in the driveway surface does not change the amount of impervious
surface 0 a lot.
The seco d part of the amendment changes the amount of allowable impervious surface
on existi g lots of record to forty percent (40%) with the use of specific storm water
manage ent practices. These practices include the use of grass f1lter strips, dividing
impervio surface into smaller areas, and grading and construction techniques which
will enco ge rapid infiltration of runoff.
The staff. s proposing this change as a response to many of the variance requests over the
last two ears. A survey of variance requests to the impervious surface in 1995 and 1996
showed arly all of the properties were substandard lots. The proposed language is
consisten with those variances, and sets specifIc standards for reducing the impact of the
increased coverage. This amendment will also help to counter the effect of including
gravel . veways in the defInition of impervious surface on the smaller existing lots.
Staff rec mmended approval of the amendments.
MNI02896.DOC
PAGE 3
Comments from the public:
Dave Smith, 2590 Spring Lake Road, does not feel it is fair to set a certain percentage on
impervious surface.
Jim Albers, 14992 Storms Circle, questioned the storm water management. Kansier and
Rye explained the procedures and techniques.
Commissioner Criego closed the public hearing.
Comments from the Commissioners:
KuykendaU:
. Rye spoke on sand packing as impervious surface.
. It would be helpful and useful for someone to come up with designs or examples to
help or show how these treatments work for the public.
. Supportive.
V onhof:
. This is the most significant change the Commissioners have looked at with the most
far reaching implications. Our city sits on top of a watershed and a large lake. This
will impact almost every lot. It is a significant change to go from 30% to 40%
impervious surface.
. Has not seen any correlation between the figures or impact with the runoff. No
supporting data in the reports.
. What is the standard going to be? Are they going to have to use these practices?
. Kansier explained the procedures. Anything after 30%, up to 40% must fall within
the storm water management requirements.
. Rye said there is a wealth of information on storm water management and how to deal
with problems.
. Examine ordinances. Concerned with the impact of changing to 40%.
Wuellner:
. Is it possible with the best possible management practices to control runoff to any
great extent on a lot having a very significant slope to it?
. Many lake lots are long and narrow with steep grades. Can the property owner
control the runoff as the City intends it to be?
. Should this 40% apply to only substandard lots? What is the real intent?
. Should this apply to just shoreland lots?
. There are a lot of unanswered questions.
. Not comfortable making a significant change to the status quo because of those
concerns.
MNI02I96.DOC
PAGE4
Stamson: I
. Same ~oncerns as other commissioners.
. The b st management practices were not clear. Be more specific.
. Conce for 40% on larger lots.
. More pen to applying to substandard lots.
Criego:
. Same oncerns.
. The 0 . ginal question was gravel roads and definition of impervious surface.
. Shoul not change the ordinance because of substandard lots.
. How oes this apply to new lots? Kansier explained the new lots will be larger, wider
and e ier to fit by design on the lots. This is aimed at the shoreland substandard lots.
. Prefer to continue the process as in the past.
. Crite a is too open in the ordinance. There has to be a lot more thought and
disc sion.
Rye sugg sted to look at the purpose of what impervious surface coverage regulation
really is. The staff view is, if someone can accommodate the situation in the ordinance
address ough the rule rather than try to address it as an exception through the variance
process. referably address it through the rule. The DNR reviewed it and said from their
point of v ew it was fine. It accomplished what they were trying to accomplish in setting
the maxi urn impervious surface coverage for properties located in the shore land district.
It was no done to get rid of a couple of variances a year. The intent was to have the
ordinanc address the situation rather than have people come in and go through
proceedi gs.
Open Di cussion and Comments:
Wuellne :
The conc pt is reasonable use of property. That is the problem the City is facing as well
as setbac s and design standards. Concern for thennal pollution.
V onhof:
Talk abo t result and runoff problems. Engineers will be able to give you runoff rates.
What is e quality of our ground water? What will the impact be in 10 years? What if
we have terrible lake? There needs to be additional protections within the shoreland
district t do not apply to other districts. Concern is anything above 30%.
Wuellne :
Could go along at a higher impervious surface for a flatter property as opposed to a steep
slope pro erty. The main concern for Prior Lake is the water quality.
MNI02896.DOC
PAGES
Criego:
This will be hard to implement. Agrees with Wuellner in taking too big of a step too
quickly. The initial intent was to decide if a gravel road was impervious. Not ready to
increase to 40%. The issue is runoff. Why 40%? Not enough study done to act.
Kuykendall:
The performance criteria are important. Engineering design may be required. It may
cost, but it will control and manage. Give people the alternative to design. There should
be practical ways to show the public.
Stamson:
The benefit would be to get the practices up front. In the future the Commissioners will
be approving variances for hardships and not get the performance criteria. The ordinance
is a pro-active way to get it up front.
Rye felt the performance approach is a combination of specifying what you are trying to
achieve and tell how to achieve it. The DNR applied shoreland rules for the entire State.
They established the 25% impervious standards to make sure it covered all the bases.
The DNR is concerned for water quality.
MOTION BY WUELLNER, SECOND BY VONHOF, TO RECOMMEND APPROVAL OF
DRAFT ORDINANCE 96-XXX CHANGING THE IMPERVIOUS SURFACE DEFINITION
TO INCLUDE GRAVEL DRIVEWAYS. TABLE THE REMAINDER OF THE ORDINANCE
FOR FURTHER DISCUSSION REGARDING THE 40% FOR IMPERVIOUS SURF ACE.
MOTION FOR AN AMENDMENT BY KUYKENDALL, SECOND BY VONHOF,
RECOMMENDING STAFF TO COME BACK AT A REASONABLE TIME WITH A
DEFINITION FOR PERFORMANCE CRITERIA.
Vote taken signified ayes by Wuellner, V onhof, Kuykendall, Stamson and Criego.
MOTION CARRIED.
The Commissioners decided to delay "D" of the public hearings to the end of the
meeting.
6. New Business:
A. Case #96-106 - Appeal of Hillcrest Homes, Inc., for a decision of the Zoning
Officer relating to setback averaging.
Jenni Tovar presented the staffreport. On October 11, 1996 the Building Department
received an application for a building permit from Hillcrest Homes for the construction of
a single family dwelling with attached garage on property located at 5600 Fairlawn
Shores Trail. The proposed structure has a setback from the Ordinary High Water Level
MNI02896.DOC
PAGE6
(OHW) of 60 feet. The applicants used setback averaging to determine the lakeshore
setback. Upon review by Planning Department, it became apparent the adjacent lot to
the east \\jas vacant. A structure on the westerly adjacent lot is setback approximately 54
feet from the Ordinany-High-Water. Staff is of the opinion setback averaging cannot be
used bec3iuse at the time of application for a building permit, there was no structure on
the lot adjacent to the east to use in calculating a setback average. Their recommendation
to City C<!>uncil is to uphold staff's interpretation of the ordinance.
s from the public:
Chris De ovic of Hillcrest Homes, recapped meetings with the planning department and
discusse their proposals to avoid variances. Hillcrest was unaware of setback averaging.
They are ing to comply with the rest of the neighborhood and would like to average
with the ormer house on the lot (Lot 25) and the house on Lot 23 or the existing house
on Lot 2 . The two lots are in separate ownership.
Criego:
. The molition permits are run through the building department.
. Rye s . d when staff looked at it initially, basically there were three structures with
setba ks of approximately 50 feet. The possibility one of the houses would suddenly
disap ear in the middle of this and affect the setback averaging provision did not
occur to staff.
. Hone t oversight on everyone's part. Should not punish the developer.
. Go ead and recommend to City Council to accept the development.
. Ordi ance states they are buildable lots.
V onhof:
. Agre s.
Kuyken all:
. Conc s with what was said but has reservations.
. Incre ed the impervious surface because of a loop hole.
. The ize of the adjacent lots are unknown.
. We ed to reassess anytime someone takes down a structure and changes the
impe ious surface.
Rye spo e of the ordinance provision addressing this issue which was removed by City
Council. The Commissioners have to deal with the issue in front of them.
Jim AI rs felt if the lots were combined the impervious surface and setbacks would be
the same
Wuelln r:
. Que ioned dimensions on home.
MNI02896.
PAGE 7
Stamson:
. Hillcrest owned both lots at the time of the demolition.
. Albers explained the demolition permit and then the building permit process.
. Tovar spoke on the ownership and lot split before the demolition.
. Regrettable it happened but the ordinance is specific. This is variance criteria.
. It is our obligation to enforce the ordinance as written.
There was a short discussion on the interpretation of the ordinance.
MOTION BY VONHOF, SECOND BY WUELLNER, TO RECOMMEND CITY COUNCIL
TO ACCEPT THE APPEAL FINDING SETBACK AVERAGING WITH PREVIOUS
EXISTING STRUCTURES IS IN COMPLIANCE WITH CITY CODE PROVISIONS.
Vote taken signified ayes by V onhof, Wuellner, Kuykendall, Stamson and Criego.
MOTION PASSED.
B. Case #96-105 - Appeal of Dave Smith for a decision of the Zoning Officer
relating to setback averaging.
Jenni Tovar presented the staff report stating the following: On June 10, 1996 the
Planning Commission heard a variance request from Dave Smith regarding the front yard
setback from the centerline of a county road at 2590 Spring Lake Road. The Planning
Commission unanimously approved an 18 foot variance to permit a setback of 67 feet
from the centerline of Spring Lake Road for the proposed garage addition (34 feet from
the property line).
On September 9, 1996 the Planning Commission heard a variance request from Tina and
Chad Pavek regarding a front yard setback of a proposed house from the centerline of
Spring Lake Road located on a vacant lot at 2610 Spring Lake Road (adjacent to Dave
Smith's property). The Planning Commission unanimously approved a 12 foot variance
to permit a setback of 63 feet from the centerline of Spring Lake Road (31 feet from
property line).
Dave Smith noticed Pavek's house being constructed 4 feet closer to the road than his
proposed garage addition. He approached the Planning Department requesting
permission to move his garage addition closer to the street.
The Planning Department has affirmed setback averaging cannot be done if one or both
of the adjacent parcels are vacant at the time of application for a building permit. In this
case, when Dave Smith received a building permit the lot to the east was vacant. When a
permit is issued the ordinances and conditions in effect at the time of reviewing the
permit are considered. Furthermore, the variance granted to Dave Smith by the Planning
Commission determined exactly what the front yard setback would be. The Planning
Department cannot authorize any setbacks to be different from those in the City Code,
MNI02896.DOC
PAGES
unless a \1ariance is granted. Recommendation to the City Council was to uphold staff's
interpretaFon of the ordinance.
Commen from the public:
Dave Sm th, 2590 Spring Lake Road, distributed a survey showing his proposed change.
Mr. Smi would like to have his garage line up with Pavek's house.
Jim Weni ger, 2591 Spring Lake Road, has been working with Mr. Smith on his
construct on and improvements. He attended all the related hearings. Mr. Weninger feels
Commiss oners stated the setbacks should be consistent with Smith's house at the Pavek
hearing.
Tovar ex lained Mr. Smith's variance request.
V onhof:
. Cann t use future considerations. Commissioners made a decision with the criteria at
the ti e.
. Supp rt staff.
Kuyken all:
. Tee . cally and legally staff recommendation is appropriate.
. Unde tands where applicant is coming from. Can come back and apply for a
vari ceo
Wuellne :
. Ques ioned Pavek's variances.
. Agre s with V onhof and supports staff.
s with City Staff.
Criego:
. Agre s with the rest of Commissioners.
. Cann t accept appeal at the time the variance was granted none of this information
was own.
Jim We nger felt it was appropriate Commissioners review the Pavek variance. His
impressi n was the Pavek variance was consistent with Dave Smith's setback.
Jane Kan ier addressed Mr. Weninger's concern stating the setbacks were consistent with
the neigh orhood.
MOTION BY VONHOF, SECOND BY KUYKENDALL, TO RECOMMEND THE CITY
COUNCI UPHOLD STAFF'S INTERPRETA nON OF THE ORDINANCE.
MNt02896.DOC
PAGE 9
Vote taken signified ayes by V onhof, Kuykendall, Stamson, Wuellner and Criego.
MOTION CARRIED.
A recess was called at 8:48 p.m. The meeting reconvened at 8:52 p.m.
Public Hearing Continued.
D. CASE #96-099 CONSIDER AN AMENDMENT TO SECTION 5-4-1 (C) OF THE
CITY CODE AND TO SECTION 4.1 (C) OF THE PRIOR LAKE ZONING ORDINANCE TO
ALLOW A 5' SIDE YARD SETBACK FOR AN ADDITION TO AN EXISTING
RESIDENTIAL STRUCTURE IN THE R-l AND R-2 DISTRICTS
Criego read the Opening Statement for public hearing. There was no attendance by the
public.
Planning Coordinator Jane Kansier presented the staff report. The amendment is to the
Zoning Ordinance revising the required side yard setback for an addition to an existing
dwelling.
On October 7, 1996, the City Council reviewed an appeal of a Planning Commission
decision to deny a variance request for a reduced side yard setback. The variance
involved an addition to an existing dwelling. The Council approved this variance on the
basis it was consistent with the recent amendment to the Zoning Ordinance to allow one
side yard setback of 5' on substandard lots. The Council then directed staff to draft an
amendment to the ordinance which would allow a similar setback for additions to existing
dwellings.
Rye commented on the City Council's feelings that an amendment be brought forward
which would be consistent with the intent of the ordinance. Staff approach was to allow
one 5' setback to an existing structure.
Comments from the Commissioners:
Stamson:
. The original ordinance was written for substandard lots and tries to make an
exception for them. It seems backwards to give people with larger lots the same 5
feet side yard setback. If the City wants it uniform it should have been left at 10 feet.
Wuellner:
. This recommendation came up before the Commissioners by a previous staff. It did
not pass at that time. Commissioners felt in time, it would become the norm.
. Crowding along the lakefront is getting worse. This will exacerbate the problem.
. Keep as is. Not in favor.
MNI02896.DOC
PAGEIO
V onhof:
. Staff as requested by City Council to do this.
. Does ot agree with it. It will not solve the problem.
. There e still going to be large lots coming in asking for variances for other setbacks
which could be denied and end up in front of the Council.
Kuykend II:
. Why 0 we have setbacks? Light, air, fIre, do not want a wall effect. Safety issues.
. Not easonable to have Council come back with request. There is no fIxed
ratio e on 10 feet. Come up with a reasonable concept. What if you used a
perce t?
. Rye a dressed possible problems using a percentage. He also pointed out easements
along e lot lines.
Criego:
. Why. s a side yard variance more important than front and back setbacks or
impe ious surface?
. This i just going to reduce standards. There is no logic. In a substandard lot
vari ces should be given. Side yard made sense.
. Just b cause a person wants to take care of a second family, the City should not have
to c ge the ordinance to accommodate two families.
. You on't stop at existing residential dwellings. If the City is going to implement
this, 0 it across the board.
. Does ot like this and is not in favor of supporting.
V onhof:
. The t ughest variances the Commissioners had, are the large lots not making the
hards . p criteria.
MOTION BY WUELLNER, SECOND BY ST AMSON, TO RECOMMEND CITY COUNCIL
DENIAL F THE PROPOSED AMENDMENT TO THE ZONING ORDINANCE.
A wall e ect on the lake is not wanted. Nothing wrong with 10' standard as it exists.
People 11 take advantage of the setback. A neighbor can use an other's property to
satisfy hi addition leaving no alternative for his neighbor's potential use.
Vote tak n signifIed ayes by Criego, Wuellner and Stamson, nays by V onhof and
Kuykend 1. MOTION CARRIED.
5.
MNI02B96.DOC
PAGEII
7. Announcements and Correspondence:
Kuykendall requested staff to revisit the issue involved splitting lots under common
ownership in the shoreland district.
8. Adjournment:
MOTION BY WUELLNER, SECOND BY CRIEGO, TO ADJOURN THE MEETING.
The meeting adjourned at 9:21 p.m.
Don Rye
Director of Planning
Connie Carlson
Recording Secretary
MNI02lI96.DOC
PAGEI2
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PRESEN~ER:
REVIEWED BY:
PUBLIC EARING:
DATE:
PLANNING REPORT
4A
PUBLIC HEARING TO CONSIDER AN AMENDMENT TO
THE ZONING ORDINANCE RELATING TO THE
TREATMENT OF COMMUNICATIONS ANTENNA AND
EQUIPMENT SHELTERS (Case File #96-107)
JANE KANSIER, PLANNING COORDINATO~
DONALD R. RYE, PLANNING DIRECTOR U
-LYES _NO
NOVEMBER 12, 1996
The purp se of this public hearing is to consider an amendment to the Zoning
Ordinanc as it relates to the treatment of communications antennas and support
buildings The amendment has several parts. First of all, the existing definition of
Essential Services is broadened to include telecommunications as a utility. Secondly, a
definition of "Equipment Shelters" is proposed. Finally, the amendment addresses the
standard for the construction of equipment shelters.
BACKGROUND:
The telecommunications industry is expanding rapidly, and several companies have
approached the City with requests to utilize existing water tower sites for the antennae
and other equipment needed to provide this service. The City of Prior lake currently
has two such lease agreements, with antennae on the Prior South water tower and on
the water tower located at Crest Avenue and CSAH 42. The City Council recently
adopted a standardized water tower antennae agreement to address the requests for
use of the water tower. However, a recent review of the Zoning Ordinance indicated we
have no provision allowing the equipment shelters often associated with the antennae.
The purpose of the proposed amendment is to address the equipment shelters.
DISCUSSION:
The current definition of "Essential Services" is very narrow and includes only gas,
electric, steam, and water and sewer utilities. The proposed amendment is expanded to
include several other utilities. This amendment reads as follows:
ESSENTIAL SERVICES: Services and utilities needed for the health, safety and
general welfare of the City, such as underground, surface, or overhead electrical,
96107pc.doc
16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
AN EQUAL OPPORTUNITY EMPLOYER
gas, telecommunications, radio communications, steam, water, sewerage, and
other utilities.
The second part of the amendment adds a definition of "Equipment Shelters" as follows:
EQUIPMENT SHELTERS: Buildings and structures used for the storage of
equipment related to and accessory to the furnishing of telecommunication or
similar services to the public.
The Zoning Ordinance currently has no definition or provisions for equipment shelters.
The proposed amendment will define these buildings and the use. Section 5-3-1 of the
Zoning Ordinance must also be changed to list equipment shelters as a permitted use.
This is accomplished by adding a sentence stating "Equipment shelters are permitted
as an accessory use subject to the provisions of Section 5-5-2 C of this CodeH to
the permitted use section. The third part of the amendment actually lists the standards
for equipment shelters. These standards include provisions for size. exterior finish and
location. The standards proposed will be included in the accessory uses section of the
Code and are listed below:
(C) Equipment shelters are permitted as an accessory use to an essential
service subject to the following regulations:
(1) An equipment shelter shall not exceed 336 square feet in area. In the
event there is more than one such building on a parcel, the maximum
area of all such structures combined may not exceed 5% of the total lot
area.
(2) Exterior building materials for equipment shelters shall be brick or a
material which simulates the appearance of a brick fascia.
(3) Equipment shelters must meet the setbacks listed in Section 5-4-1, Lot
and Yard Requirements, for "Other Uses" in the A-1, R-1, R-2, R-3, R-4
and B-2 Districts, or for "All Uses" in the B-1, B-3, 1-2 and C-1 Districts,
or for "Structures" in the B-P District
(4) There shall be no outside storage of equipment or vehicles permitted
as part of the equipment shelter.
ALTERNATIVES:
1. Recommend the Council approve the amendments as proposed. or with changes
specified by the Planning Commission.
2. Recommend the Council deny the proposed amendments.
3. Table or continue discussion ofthe item for specific purpose.
RECOMMENDATION:
The staff recommends alternative #1.
96107pc.doc
Page 2
ACTION REQUIRED:
A motion and second recommending approval of the proposed amendments.
REPORT ATTACHMENTS:
1. Draft Ordinance Language
2. Hearing Notice
3. Approved "Water Tower Antenna Agreemenr
96107pc.doc
Page 3
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CITY OF PRIOR LAKE
ORDINANCE NO. 96-
AN ORDINANCE AMENDING SECTIONS 5-1-7, 5-3-1 AND 5-5-2 OF THE
PRIOR LAKE CITY CODE AND AMENDING SECTIONS 8.1,3.1 AND 6.2 OF
THE PRIOR LAKE ZONING ORDINANCE 83-6.
The City Council of the City of Prior Lake does hereby ordain:
Sections 5-1-7, 5-3-1 and 5-5-2 of the Prior Lake City Code and Sections 8.1, 3.1 and 6.2
of the Prior Lake Zoning Ordinance 83-6 are hereby amended to read as follows:
Section 5-1-7 and 8.1 are hereby amended by deleting the existing definition of Essential
Services, and adding the following definition:
ESSENTIAL SERVICES: Services and utilities needed for the health, saftty and
general welfare of the City, such as underground, surface, or overhead electrical, gas,
telecommunications, radio communications, steam, water, sewerage, and other utilities.
Section 5-1-7 and 8.1 are hereby amended by adding the following definition:
EQUIPMENT SHELTERS: Buildings and structures used for the storage of equipment
related to and accessory to the furnishing of telecommunication or similar services to the
public.
Sections 5-3-1 and 3.1 is hereby amended by adding the following language (in italics):
PERMITIED USES: The permitted uses for each district are listed below. Accessory uses and
essential services are also permitted. Equipment shelters are permitted as an accessory use
subject to the provisions of Section 5-5-2 C of this Code. Massage therapy or therapeutic
massage is permitted as a use accessory to retail business (except when the retail business is
operated in conjunction with a motor fuel station) and personal service businesses in the BI -
Limited Business, B2 - Community Business and B3 - General Business Districts; private club-
health club in the B 1 - Limited Business, B2 - Community Business and B3 - General Business
Districts; and hospitals and clinics in the RI - Suburban Residential District, R2 - Urban
Residential District, R3 - Multiple Residential District, and B3 - General Business District.
Sections 5-5-2 and 6.2 are hereby amended by adding (C) (1-4) as follows:
draftord.doc
PAGE 1
(C) Equipment shelters are permitted as an accessory use to an essential service subject to
the following regulations:
(1) An equipment shelter shall not exceed 336 square feet in area. In the event there is
more than one such building on a parcel, the maximum area of all such structures
combined may not exceed 5% of the total lot area.
(2) Exterior building materials for equipment shelters shall be brick or a material which
simulates the appearance of a brickfascia.
(3) Equipment shelters must meet the setbacks listed in Section 5-4-1, Lot and Yard
Requirements,for "Other Uses" in the A-1, R-1, R-2, R-3, R-4 and B-2 Districts, or
for "All Uses" in the B-1, B-3, I-2 and C-1 Districts, or for "Structures" in the B-P
District.
(4) There shall be no outside storage of equipment or vehicles permitted as part of the
equipment shelter.
This ordinance shall become effective from and after its passage and publication.
Passed by the City Council of the City of Prior Lake this _ day of
. 1996.
ATTEST:
City Manager
Mayor
Published in the Prior Lake American on the _ day of
. 1996.
Drafted By:
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PAGE 2
NOTICE OF PUBLIC HEARING TO CONSIDER AN AMENDMENT TO
SECTION 5-3-1 OF THE CITY CODE AND TO SECTION 3.1 OF THE PRIOR
LAKE ZONING ORDINANCE RELATING TO THE TREATMENT OF
COMl\'lUNICATION ANTENNAS AND SUPPORT BUILDINGS
You are hereby notified that the Prior Lake Planning Commission will hold a public
hearing at Prior Lake Fire Station #1, located at 16776 Fish Point Road SE (Southwest of
the intersection of C.R. 21 and Fish Point Road), on Tuesday, November 12, 1996, at
7:00 p.m. or as soon thereafter as possible. The purpose of the public hearing is to
consider an amendment to Section 5-3-1 of the City Code and to Section 3.1 of the
Zoning Ordinance relating to the treatment of communication antennas and support
buildings.
If you wish to be heard in reference to this item, you should attend the public hearing.
Oral and written comments will be considered by the Planning Commission. If you have
questions regarding this matter, please contact the Prior Lake Planning Department at
447-4230 between the hours of8:00 a.m. and 4:30 p.m. Monday through Friday.
Prepared this 23rd day of October, 1996 by:
Jane Kansier
Planning Coordinator
City of Prior Lake
TO BE PUBLISHED IN THE PRIOR LAKE Al'VIERICAN ON OCTOBER 26, 1996
1:\96zoamnd\communi\96107pn.doc
16200 Eagle Creek Ave. S.E.. Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
AN EQUAL OPPORTCNITi E:.1PLOYER
WATER TOWER ANTENNAE AGREEMENT
THIS AGREE1\1ENT is made and entered into this day of ,
1996, by and between the CITY OF PRIOR LAKE, MINNESOTA, a Minnesota municipal
corporation (hereinafter referred to as the "City"), and
a corporation (hereinafter referred to as "COMMUNICATIONS COMPANY").
RECITALS
A. The City is the fee owner of certain land located in Scott County, Minnesota
legally described on Exhibit A attached hereto (hereinafter referred to as the "Property").
B. Located on the Property is a municipal water tower owned, operated and
maintained by the City (hereinafter referred to as the "Water Tower").
C. COM11UNICA TIONS COMPANY desires to install, operate and maintain a
single facility, consisting of a total of twelve (12) antennae, used for the transmission and
reception of radio communication signals in such frequencies as may be assigned by the Federal
Communication Commission (hereinafter referred to as the "Antennae"), and to provide for the
storage of related equipment (hereinafter referred to as the "Equipment") in accordance with the
terms of this Agreement.
D.
Tower.
The parties desire to enter into this Agreement relating to the use of the Water
AGREElVIENTS
NOW, THEREFORE, in consideration of the foregoing recitals and for other good,
valuable and fair consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Authorization to Use Water Tower Soace. The primary purpose of the City's
ownership of the Property is to: (a) operate and maintain a municipal water tower so as to
provide water service to residents of Prior Lake; and (b) to provide governmentally related
communication systems for the City of Prior Lake. Subject to the terms of this Agreement, the
City authorizes COMi't1UNICATIONS COMPA1~Y's non-exclusive use of a certain portion of
the Property, which is legally described on Exhibit A attached hereto, subject to any and all
existing easements and restrictions not inconsistent with the rights granted hereunder for the
purposes described in Paragraph 4 of this Agreement, including the installation, operation, and
maintenance of the Antennae and the storage of the .Equipment. The location on the Water
Tower where COMMUNICATIONS COMPANY is authorized to install the Antennae and the
location of the Equipment Shelter ("Site Plan") on the Property are depicted on Exhibit B
attached hereto.
2. Term. The term of this Agreement shall begin on January 1, 1997, subject totsatisfaction of the conditions described in Exhibit C, and end at midnight on December 31, 200 1
("Initial Term"). COMMUNICATIONS COMPANY shall have the right to extend the Initial
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1
term of this Agreement for three (3) additional five (5) year terms ("Renewal Term"), subject
to the provisions of paragraph 5, and provided that it gives City written notice of its intention
to extend at least sixty (60) days prior to the expiration of the then-existing term.
3. Rent and Comoensation.
A. Initial and Renewal Term. Beghming on December 31, 199 _ and on each
December 31st during the Initial Term, rent shall be paid, in one payment, by
COMMUNICATIONS COMPANY to the City in the annual amount of $
Thereafter, the annual rent for each Renewal Tenn shall increase by fifteen percent (15%).
B. Sut;lt;llementarv Eauipment. On the Commencement Date of the Lease,
COMMUNICA TIONS COMPANY agrees to provide the City the following supplementary
equipment, all of which are at the cost and expense of COMMUNICATIONS COMPA1~Y:
a) Three (3) Ultra portable telephones.
b) Three (3) additional batteries.
c) Three (3) 12 volt adapters.
At the commencement date of each renewal term, COMMUNICATIONS COMPANY
shall replace, at COMMUNICATIONS COMPANY's sole cost, the above described cellular
equipment with three (3) similar and cost effective telephones of comparable value.
C. Equipment Shelter. In addition to the rental terms and payments provided for
above, COMMUNICATIONS COMPANY shall pay City a one-time non-refundable fee of
Twelve Thousand Five Hundred Dollars ($12,500.00) as compensation for
COMMUNICATIONS COMPANY's use of a portion of the Property for a building
("Equipment Shelter") for the storage of Equipment related to the Antennae. Exhibit D depicts
the size, location and configuration of the Equipment Shelter on the Property.
COMMUNICATIONS COMPANY's use of the Equipment Shelter shall be exclusive. The
exterior finish of the building must be brick or a material which simulates the appearance of a
brick fascia. The building construction plan shall be submitted in accordance with City policy
and design and zoning criteria and subject to the review and approval of the City of Prior Lake
before construction. The appearance of the Equipment Shelter shall match the existing
Equipment Shelter depicted in Exhibit D. COMMUNICATIONS COMPA1'l"Y shall provide for
and be responsible for all utility services used by COMMUNICATIONS COMPANY and the
maintenance of the Equipment Shelter. COMMUNICATIONS COMPA1~Y shall be entitled to
the exclusive use of the Equipment Shelter during the Initial Term and during Renewal Terms.
4. Use.
A. COMMUNICATIONS COMPANY may use the Property and the Water Tower
solely for the purpose of constructing, installing, removing, replacing, maintaining, and
operating the Antennae, subject to such modifications and alterations as may result from changes
or improvements in technology. Prior to COMMUNICATIONS COMPANY installing,
subsequently modifying, or removing the Antennae and the Equipment it shall provide written
notice to the City, along with copies of the plans and specifications of the work. The City shall
have the right to approve the manner of installation and the location on the Water Tower where
43517
2
COMMUNICATIONS COMPANY installs the Antennae, which approval shall not be
Unreasonably withheld or delayed. COMMUNICATIONS CONfPAJ.'fY shall not install any
subsequent antennae (beyond the original twelve (12)) without negotiating a written addendum
to this Agreement, which addendum shall include an increase in the annual rental fee.
B. COMMUNICATIONS COMP.J\NY shall store all Equipment related to the Antennae
in the Equipment Shelter.
C. City will not in any way be responsible for the Antennae, the related Equipment, the
Equipment Shelter, or any personal property actually placed on the Property or in the Equipment
Shelter or installed on the Water Tower by COMMUNICATIONS COMPANY.
D. The Antennae and the related Equipment shall remain the property of
COMMUNICATIONS COMPANY, subject to the terms of Paragraphs 7 and 8.
E. The City shall provide COMMUNICATIONS COMPANY with twenty-four (24)
hour, seven (7) day a week, year-around access to the Property and to the Water Tower, subject
to the City's right to limit access to the Water Tower in cases of emergency or at times when
the City is conducting repairs or maintenance on the Water Tower. The City shall use
reasonable effortS to minimize the disruption of COMMUNICATIONS CONfPANY's access to
the Water Tower, in responding to any such emergencies and performing such maintenance and
repairs. The City will be entitled to reimbursement from COMMUNICATIONS COMPANY
if City incurs any costs associated with providing COMMUNICATIONS COMPANY access to
Water Tower, Property or Equipment Shelter except in those cases where cost is incidental to
City obtaining access for its own purposes unrelated to COMMUNICATIONS COMPANY's use
of Antennae, Water Tower and Equipment Shelter. Notwithstanding the foregoing, "access"
does not require or impose upon the City an affIrmative duty to snowplow in order to provide
"access" to the Property or to the Water Tower. The City shall not be responsible in damages
or otherwise for interruption in COMMUNICATIONS COMPANY services where the
interruption is due to an emergency or performance of maintenance and repairs on the Water
Tower.
F. COMMUNICATIONS COMPANY shall take all steps necessary to prevent any
mechanics' or materialmen's liens from being placed on the Property as a result of
COMMUNICATIONS COMPANY's use of the Water Tower, Property and Equipment Shelter,
and specifically indemnifies the City from such liens.
G. The color of the Antennae and any Equipment placed on the Water Tower shall
match the color of the Water Tower.
H. COMMUNICATIONS COMP Al~Y shall pay all personal and real property taxes
assessed against the Antennae, related Equipment and/or Equipment Shelter. If any such
improvements constructed on the Property should cause part of the Property to be taxed for real
estate purposes, it shall be the liability of COMMUNICATIONS COMPANY to pay such
property taxes.
I. The City represents and warrants to COMMUNICATIONS COMPANY that
COMMUNICATIONS COMPAJ.~Y shall enjoy ingress, egress, and access from an open and
43517
3
improved public road to the Property adequate to service the Property and the Equipment Shelter
at all times during this Agreement and at no additional charge to COMMUNICATIONS
COMPANY. Any access easements rented to COM!vlUNICATIONS COMPANY shall
terminate upon termination of this Water Tower Antennae Agreement and CO~IMUNICATIONS
COMPA1"lY agrees to execute any and all documents necessary to remove the easement from
the Property.
s. Maintenance of Antennae: Modification. COM!vlUNICATIONS COMPANY shall
maintain the Antennae, Equipment, and Equipment Shelter in good condition at all times, at its
sole cost and expense. COMMUNICATIONS COMPANY shall conduct all repair, replacement
and maintenance operations in accordance with applicable OSHA regulations or such other
occupational and safety regulations pertaining to such operations. Every five (5) years from the
commencement date of this Agreement, COMMUNICATIONS COMPANY shall have the
Antennae and Water Tower inspected by a Registered Civil Engineer and provide the City with
a copy of the inspection report. If COMMUNICATIONS COMPANY fails to do so, and such
failure creates a risk of damage or injury to persons or property (as determined in the reasonable
discretion of the City), the City may take such steps as it determines to be necessary to protect
persons or property; including removal of the Antennae and the Equipment.
COMMUNICATIONS COMPANY shall reimburse the City for any costs incurred in connection
with assuring compliance with the provisions of this paragraph; including any costs of restoring
the Water Tower and the Property to their original condition. If COMMUNICATIONS
COMP A.NY fails to pay the City for such costs within thirty (30) days of a demand by the City
for payment, the City at its election may terminate this Agreement and retain the total payment
of the current years rent. These remedies are nonexclusive, and the City expressly reserves its
rights to pursue any available legal or equitable remedies.
6. Utilities. COMMUNICATIONS CO:MPi\NY shall separately meter and pay all
electric and other utility services that are associated with the use 0 f the Property, the Water
Tower, and the Equipment Shelter. The City agrees to cooperate with COMMUNICATIONS
COMP ANY in its efforts to connect the Antennae and Equipment to existing utility service at
COMMUNICATIONS COMPANY's expense. The City makes no representation or warranty
regarding the availability of electric or other utility service to the Water Tower or the Equipment
Shelter. COMMUNICATIONS COMPANY shall have the right to install utilities, at
COMMUNICATIONS COMPANY's expense, and to improve the present utilities on the
Property including, but not limited to the installatior: of emergency power generators within the
Equipment Shelter. The City shall not be liable, and CO~1MUNICA TIONS COMPANY waives
any and all claims against the City, for any interruption of electrical or other utility services
Property, Antennae or Equipment Shelter.
7. Removal of Antennae and Equiument.
A. COMMUNICATIONS COMPANY shall remove the Antennae and all personal
property and trade fixtures at its own cost and expense upon the expiration of the term of this
Agreement, any earlier termination of this Agreement as provided herein, or any Renewal Term.
COMMUNICATIONS COMPANY shall, at its sole cost and expense, return the Water Tower
and the Property to the condition it was in prior to the commencement of this Agreement,
normal wear and tear excepted. In the event COMMUNICATIONS COMPANY fails to so
remove any component of the Antennae, the Equipment, or both, or to return the Water Tower
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4
and the Property to their original condition, within thirty (30) days of the termination of this
Agreement, then the City shall have the right to remove the Antennae or Equipment at
COMM:UNICATIONS COMPANY's sole cost and expense. If COMM:UNICATIONS
COMPANY fails to reclaim the Antennae or Equipment with thirty (30) days' notice from the
date of removal by the City. said Antennae and Equipment shall without funher notice be
deemed abandoned. No Antennae or Equipment will be released by the City to
COMM:UNICATIONS COMPANY until COMMUNICATIONS COMPA.l.~Y has reimbursed
the City for all expenses related to removing the Antennae and the Equipment and returning the
Property and the Water Tower to their original condition. .
B. Upon the termination of this Agreement, without regard to the cause for such
termination, all right, title and interest in and to the Equipment Shelter shall be vested with the
City. Upon such termination, and at the election of the City the Equipment Shelter shall either
remain upon the Property in the location depicted on Exhibit D or at the sole expense of the
COMM:UNICATIONS COMPANY be removed and the Property returned to its original
condition.
8. Termination.
A. Except as otherwise provided herein, this Agreement may be terminated by either
party upon sixty (60) days' written notice to the other party, only as follows:
(a)
(b)
(c)
(d)
(e)
43517
by either party upon default of any covenant or term hereof by the other
party, which default is not cured within sixty (60) days of receipt of
written notice of default to the other party (without, however, limiting any
other rights of the parties pursuant to any other provisions hereof);
by COMMUNICATIONS COMPANY for cause if it is unable to obtain
or maintain any license, permit, or other governmental approval necessary
for the construction and! or operation or use of the Property and the Water
Tower as a transmission facility and Equipment Shelter;
by COMMUNICATIONS COMPk~Y for cause if the Property is or
becomes unacceptable for technological reasons under
COMMUNICATIONS COMPANY's design or engineering specifications
for its Antennae or related Equipment;
by the City if COMMUNICATIONS COMPANY fails to tender the
annual rental payment within fifteen (15) business days of the
commencement date of each year;
by the City if it determines, after consultation with a licensed strUctural
engineer that the Water Tower is strUcturally unsound for use as a water
tower, for any reason including but not limited to considerations related
to the age of the strUcture, damage to or destruction of all or part of the
Water Tower or the Property from any source, or factors relating to the
condition of the Property;
5
(t) by the City, if its City Council decides, for any reason, to discontinue use
of the Water Tower for all purposes, in which event
COMMUNICATIONS COMPANY shall not be entitled to compensation
in any form for any reason as a result of the City's exercising its rights
under this subparagraph; or
(g) by COMMUNICATIONS COMPANY if City causes electrical utility
services to be interrupted for a period of more than thirty (30) days.
B. If City terminates this Agreement other than as of right as provided in this
Agreement, or City causes interruption of the business of COMMUNICATIONS COMPANY
or for any other City breach of this Agreement, City's liability for damages to
COMMUNICATIONS COMPANY shall be limited to the actual and direct costs of Equipment
removal, relocation or repair and shall specifically exclude any recovery for value of the
business of COMMUNICATIONS COMPANY as a going concern, future expectation of profits,
loss of business or profit or related damages to COMNIUNICATIONS COMPANY.
9. Non-Exclusive Use. Upon paying the rent as required herein,
COMMUNICATIONS COMPAJ."l'Y shall have the right to the non-exclusive use of the Water
Tower and Property as permitted in this Agreement. The City shall not be responsible for any
interference which impairs the quality of the communication services being rendered by
COMMUNICATIONS COlVIPANY from the Antennae.
10. Interference Caused Bv Antennae. COMMUNICATIONS COMPANY's
Equipment shall be installed and operated in a manner which does not cause interference or
otherwise impair the quality of the communication services being rendered by the following
higher priority users: (1) City; (2) public safety agencies including law enforcement, fire, and
ambulance services, that are not part of the City; and (3) other governmental agencies where use
is not related to public safety.
11. Interference with Antennae Ooerations.
A. Tem90rarv Interru9tions of Service. If the City determines that continued
operation of the Antennae would cause or contribute to an immediate threat to public health
and/ or safety (except for any issues associated with human exposure to radio frequency
omissions, which is regulated by the federal government), the City may order
COMMUNICATIONS COMPANY to discontinue its operation. COMMUNICATIONS
COMPANY shall immediately comply with such an order. Service shall be discontinued only
for the period that the immediate threat exists. If the City does not give prior notice to
COMMUNICATIONS COMPANY, the City shall notify COMNIUNICATIONS COMPANY
as soon as possible after its action and give its reason for taking the action. The City shall not
be liable to COMMUNICATIONS COMPANY or any other party for any interruption in
COMMUNICATIONS COMPANY's service or interference with COMMUNICATIONS
COMPANY's operation of its Antennae, Equipment or Equipment Shelter, except as may be
caused by the negligence or willful misconduct of the City, its employees or agents. In any
event, the City's liability shall not extend beyond the obligation to repair the cause of the
interruption or interference. If the discontinuance extends for a period greater than three (3)
business days, COMMUNICATIONS COMPANY's sole remedy shall be have the right to
43517
6
terminate this Agreement within its sole discretion.
B. With Structure . COMMUNICATIONS COMP Al~Y shall not interfere with City's
use of the Water Tower or Property and agrees to cease all such actions which unreasonably and
materially interfere with City's use thereof no later than three (3) business days after receipt of
written notice of the interference from City. In the event that COlVlMUNICA TIONS
COMPAi'IT's cessation of action is material to COMMUNICATIONS COMPANY's use of the
Water Tower and Property and such cessation frustrates COMMUNICATIONS COMPAi~Y's
use of the Water Tower and Property, within COMl'vIUNICATIONS COMPAl"lY's sole
discretion, COMMUNICATIONS COMPANY shall have the immediate right to terminate this
Agreement.
C. With Hiszher Priority Users. If COMMUNICATIONS COMPANY's Equipment
causes impermissible interference with the parties identified in paragraph 10 above or with pre-
existing tenants, COMMUNICATIONS COMPANY shall take all measures necessary to correct
and eliminate the interference. If the interference cannot be eliminated within 48 hours after
receiving City's written notice of the interference, COMMUNICATIONS COMPANY shall
immediately cease operating its Antennae and shall not reactivate operation, except intermittent
operation for the purpose of testing, until the interference has been eliminated. If the
interference cannot be eliminated within 30 days after COMMUNICATIONS COMPANY
received City's written notice, City may at its option terminate this Agreement immediately.
D. Interference Studv - New Occupants. Upon written notice by City that it has a
bona fide request from any other party to lease an area including or in close proximity to the
Water Tower and Property, COMMUNICATIONS COMPANY agrees to provide City, within
twenty (20) days, the radio frequencies currently in operation or to be operated in the future of
each transmitter and receiver installed and operational on the Water Tower and Property at the
time of such request. City may then have an independent registered professional engineer of
City's choosing perform the necessary interference studies to determine if the new applicant's
frequencies will cause harmful radio interference to COl\tIMUNICATIONS COMPAl"lY. City
shall require the new applicant to pay for such interference studies. City agrees that it will not
grant a future lease in the Water Tower and Property to any party who is of equal or lower
priority to COMMUNICATIONS COMPANY, if such party's use is reasonably anticipated to
interfere with COMMUNICATIONS COMPANY's operation of its Antennae or Equipment.
12. Future Develo\"ment. COMMUNICATIONS COMP ANY understands and
acknowledges that the City may utilize the Property for public use at some future date, and that
the design and manner of such use shall be in the sole discretion of the City. In the event that
City undertakes such use, then the City and COMMUNICATIONS COMPANY agree to
cooperate with one another as necessary to facilitate both parties use of the Property.
13. Indemnity .
A. General. COlVIMUNICATIONS COMPANY agrees to defend, indemnify and
hold harmless City and its 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, which may
be asserted against or incurred by the City or for which the City may be liable in the
43511
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performance of this Agreement, except those which arise solely from the negligence, willful
misconduct, or other fault of the City . COMMUNICATIONS COMP AJ."l'Y shall defend all
claims arising out of the installation, operation, use, maintenance, repair, removal, or presence
of COMMUNICATIONS COMPANY's Antennae, Equipment and related facilities on the
Property .
...
...
B. Hazardous Materials. City represents that City has no knowledge of any
substance, chemical, or waste on the Property that is identified as Hazardous Materials, toxic
or dangerous in any applicable federal, state or local law or regulation. Without limiting the
scope of Subparagraph 13 (A) above, COMMUNICATIONS COMPAJ."l'Y will be solely
responsible for and will defend, indemnify, and hold the 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 Water Tower and
Property associated with COMMUNICATIONS COlVIPANY'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 defmed in any federal, state, or local environmental or safety law or regulations
including, but not limited to, CERCLA.
C. COMMUNICATIONS COMPANY's Warrantv. COMMUNICATIONS
COMPAJ."l'Y represents and warrants that its use of the Water Tower, Property and Equipment
Shelter will not generate and COMlVIUNICA TIONS COMPANY will not store or dispose of on
the Property, nor transport to or over the Water Tower or Property, any Hazardous Materials,
unless COMMUNICATIONS COMPANY specifically informs the City thereof in writing
twenty-four hours prior to such storage, disposal or transport, or otherwise as soon as
COMMUNICATIONS COMP Ai"l'Y becomes aware of the existence of Hazardous Materials on
the Property. The obligations of this paragraph 13 shall survive the expiration or other
termination of this Agreement.
14. Damaee to the Water Tower or to the ProoertV. COMMUNICATIONS
COMPAJ.TI's installation, operation, maintenance, modification, and removal of the Antennae
and Equipment shall not damage or interfere in any way with the Property or the Water Tower
operations or related repair and maintenance activities. If the activities of COMMUNICATIONS
COMPANY, or those of its agents, representative, employees, contractors, or subcontractors,
cause such damage or interference, COMMUNICATIONS COMP Ai"l'Y will cure damage or
interference within thirty (30) days after receipt of written notice. If COMMUNICATIONS
COMP AJ."l'Y fails to cure such damage or interference, the City without further notice may take
such steps as it deems necessary to repair the damage or remedy the interference, at the sole cost
and expense of CO~IUNICA TIONS COMPANY.
15. Casualty. If any portion of the Property, Water Tower or Antennae is damaged
by any casualty and such damage materially and adversely affects COMMUNICATIONS
COMPANY's use of the Water Tower or Property, COMMUNICATIONS COMPANY may
give thirty (30) days' notice of its intention to terminate this Agreement. Such notice must be
given within fifteen (15) days of notice of the casualty. If the Agreement is terminated under
the provisions of this paragraph, the COMMUNICATIONS COMPANY shall not be entitled to
retain any portion of the annual rental.
43511
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16. Ouiet Eniovment. COMivlUNICATIONS COMPANY, upon paying the rent,
shall peaceably and quietly have, hold and enjoy the Property and Water Tower. If, as of the
date of execution of this Agreement or hereafter, there is any mortgage, or other encumbrance
affecting the City's Property or Water Tower, then City agrees to obtain from the holder of such
encumbrance an Agreement that COMlvlUNICATIONS COMPANY shall not be disturbed in
its possession, use and enjoyment of the Property and Water Tower. The City shall not cause
or permit any use of the Property which interferes with or impairs the quality of the
communication services being rendered by COMMUNICATIONS COMP ANY from the
Property .
17. Insurance.
A. As long as this Agreement is in effect, CO~IMUNICA TIONS COMPANY shall
maintain a general liabiliry insurance policy that provides coverage for the Property and the
Water Tower from any damage to property or injuries to persons. Said insurance policy shall
provide coverage on an occurrence basis in an amount no less than Two Million Dollars
($2,000,000), and shall include contractual liability coverage to provide coverage for the
indemnification provision in paragraph 13 of this Agreement. Said insurance policy shall list
the City as an additional insured party. Said policy shall contain a clause that provides that the
insurer will not cancel, non-renew, or materially change the policy without first giving the City
thirty (30) days prior written notice. COMMUNICATIONS COMPANY shall provide the City
with a Certificate of Insurance for said policy which specifically details the conditions of the
paragraph. COMMUNICATIONS COMPANY shall also maintain fire and extended coverage
insurance insuring COMMUNICATIONS COMP.A.J."l'Y's personal property for its full insurable
value (subject to reasonable deductibles).
B. Notwithstanding anything in this Agreement to the contrary, each party releases
the other party from allliabiliry, whether for negligence or otherwise, in connection with a loss
covered by any policies which the releasing party carries with respect to the Property, including
the Antennae and Equipment Shelter, but only to the extent that such loss is collected under such
insurance policy(s). Any policy required to be obtained pursuant to this Paragraph 17 shall
contain a Waiver of Subrogation in favor of the other party to this Agreement.
C. COMM1JNICATIONS COMPANY shall provide City with proof of workers'
compensation insurance covering all of COMMUNICATIONS COMPANY's employees and
agents who access the Property.
18. Condition of PropertY . COMMUNICATIONS COMPANY acknowledges that
the City makes no representations or warranties regarding the suitability of the Property or the
Water Tower for COMMUNICATIONS COMPANY's intended use under this Agreement. City
represents that the Water Tower and Property are in compliance with all building and other
life/safety codes.
19. Condemnation. In the event the whole of the Property is taken by eminent
domain, this Agreement shall terminate as of the date title to the Property vests in the
condemning authority. In the event a portion of the Property is taken by eminent domain, either
party shall have the right to terminate this Agreement as of said date of title transfer, by giving
thirty (30) days' written notice to the other party. In the event of any taking under the power
,..
43517
9
of eminent domain, COMMUNICATIONS COMPANY shall not be entitled to any portion of
the reward paid for the taking and the City shall receive full amount of such award.
COMMUNICATIONS COMP AJ.~Y hereby expressly waives any right or claim to any portion
thereof. Although all damages, whether awarded as compensation for diminution in value of the
leasehold or to the fee of the Property, shall belong to City, COMMUNICATIONS COMPANY
shall have the right to claim and recover from the condemning authority, but not from City, such
compensation as may be separately awarded or recoverable by COM1'vtUNICA TIONS
COMPANY on account of any and all damage to COMMUNICATIONS COMP...\NY's business
and any costs or expenses incurred by City in moving/removing its Antennae, Equipment or
personal property. Sale of all or part of Water Tower or Property to a purchaser with power
of eminent domain in the face of the exercise of the private, shall be treated as a taking by
condemnation.
20. Waiver. Except as otherwise provided in this Agreement, the rights and remedies
of the parties to this Agreement, whether provided by law or by this Agreement shall be
cumulative, and the exercise by either party of anyone or more of such remedies shall not
preclude the exercise by it, at the same or different times, of any such remedies for the same
default or breach of any of its remedies for any other default or breach or of any of its remedies
for any other default or breach by the other party. No waiver made by either such party with
respect to the performance, or manner of time thereof, or any obligation under this Agreement
shall be considered a waiver of any rights of the party making the. waiver with respect to the
particular obligation of the other party or condition to its own obligation beyond those expressly
waived in writing and to the extent thereof, or a waiver in any respect in regard to any other
rights of the party making the waiver of any other obligation of the other party. Delay by a
party hereto in instituting or prosecuting any cause of action or claim hereunder shall not be
deemed a waiver of any rights hereunder.
21. Miscellaneous.
A. Whole Ag:reement: Modification: This Agreement contains all of the terms and
conditions relating to the rights granted herein, and replaces any oral agreements or other
negotiations between the parties relating to the Agreement. No modifications to this Agreement
shall be valid unless and until they have been placed in writing and signed by both parties
hereto.
B. Severability: If any term of this Agreement is found to be unenforceable or
invalid by a court of competent jurisdiction, such unenforceability or invalidity shall not affect
the remaining terms of this Agreement, which shall continue in full force and effect.
C. Authority: Each party represents and warrants that it has full authority to enter
into and to sign this Agreement.
D. Counterparts: The parties may sign this Agreement in counterparts.
E. BindinlZ Effect: The terms, conditions, representation and covenants of this
Agreement shall extend to and bind the heirs, personal representatives, successors and assigns
of the City and COMMUNICATIONS COMPANY.
43517
10
F. Asshrnment and Delegation:
(a) By COMMUNICATIONS COMP..<\NY: Except for COMMUNICATIONS
COMPANY's afflliates or subsidiaries, COMMUNICATIONS COMPANY may
not assign or pledge its rights or delegate its duties under this Agreement without
the City's prior written consent, which consent the City shall not unreasonably
withhold. For purposes of this Section, an "afflliate" means an entity that
controls, is controlled by, or is under common control with
COMMUNICATIONS COMPANY. No assignment or delegation shall release
COMMUNICATIONS COMPANY from any of its obligations arising under this
Agreement.
(b) By the Citv: The City may freely assign its rights and delegate its duties
under this Agreement to a joint powers organization of which it is now a
member, or to any such organization to which it may become a member during
the term of this Agreement.
G. Notices: Notices shall be in writing and personally delivered, sent by United
States Mail, postage prepaid, certified or registered with retUrn receipt requested or by any
nationally recognized overnight courier service to the following:
If to City:
City of Prior Lake
A TIN: City Manager
With a Copy to:
Suesan Lea Pace
Campbell, Knutson, Scott & Fuchs, P .A.
1380 Corporate Center Curve
317 Eagandale Office Center
Eagan, MN 55121
If to
ATIN:
Department
With a Copy to:
A TIN: Real Estate Department
H. Estowel Certificate: Each party agrees to furnish to the other, within ten (10)
days after request, such truthful estoppel information as the other may reasonably request.
1. Goyernim!: Law: This Agreement shall be construed in accordance with the laws
of the State of Minnesota.
43517
11
J. Broker. If either party is represented by a real estate broker in this transaction,
that party shall be fully responsible for any fee due such broker, and shall hold the other party
harmless from any claims for commission by such broker.
K. Memorandum of Lease. City agrees to cooperate with COMMUNICATIONS
COMPANY in executing any documents (including a Memorandum of Lease) necessary to
protect COMMUNICATIONS COMPANY's rights hereunder or COMMUNICATIONS
COMPANY's use of the Water Tower, Property or Equipment Shelter.
L. Headin~s. Headings at the beginning of paragraphs herein are for convenience
of reference, shall not be considered part of this Agreement and shall not influence its
constrUction.
IN WITNESS HEREOF, the parties have executed this Agreement as of the date fIrst
above written.
CITY OF PRIOR LAKE
Approved as to form and
execution:
By
Its Mayor
City Attorney
By
Its City Manager
By
Its
By
Its
43517
12
STATE OF MINNESOTA)
)ss.
COUNTY OF SCOrf )
The foregoing instrument was acknowledged before me this _ day of ,
1996, by Lydia Andren and Frank Boyles, the Mayor and City Manager of the City of Prior
Lake, Minnesota, a municipal corporation, on behalf of the City, and pursuant to authority
granted by its City Council.
Notary Public
STATE OF MINNESOTA )
)55.
COUNTY OF SCOrf )
The foregoing instrument was acknowledged before me this _ day of
1996, by and , the and
of ' a corporation, on behalf
of the corporation.
Notary Public
DRAFTED BY:
CAMPBELL, ~~TSON,SCOrf
& FUCHS, P .A.
1380 Corporate Center Curve
317 Eagandaie Office Center
Eagan, MN 55121
(612) 452-5000
S~:kgm
43517
13
EXHIBIT A
to
WATER TOWER ANTENNAE AGREEl\1ENT
(Legal Description)
Pursuant to that certain Water Tower Antennae Agreement dated
between the City of Prior Lake, as Lessor and ,
as Lessee, Lessee is leasing from Lessor a certain portion of the real property owned by the
Lessor (the "Property"), which is legally described as follows:
[LEGAL]
and commonly known as
43517
14
EXHIBIT B
to
WATER TOWER AJ.'ITENNAE AGREEMENT
(Site Plan)
43517
15
EXHIBIT C
to
WATER TOWER AJ.'ITENNAE AGREEMENT
(Conditions Precedent)
1. All permits from all local or federal land use jurisdictions for the intended use.
2. All local airspace authorities and FAA determination of no hazard to airspace.
3. FCC authorization to utilize this location for the intended use.
4. COMMUNICATIONS COMPANY's technical reports must establish to its exclusive
satisfaction that the property is capable of being suitably engineered to accomplish
COML\1:UNICATIONS COMPANY's intended use of the Property.
43517 16
City of Prior Lake
Prior Lake, MN
Ph. (612)
EXHIBIT D
to
WATER TOWER ANTEl~AE AGREEMENT
(Equipment Shelter)
Fax (612)
Quantity: -L-
Description:
StrUcture:
43511
Structural Steel Skid
Floor.
Walls.
Ceiling;.
Roof.
Exterior.
17