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HomeMy WebLinkAbout10C - Water Tower Antennae Agreements with Clear Wireless LLC o~ PRIO/( ~ ,,~ 4646 Dakota Street S.E. U '.w't; Prior Lake, MN 55372-1714 ~/NNE50~~ CITY COUNCIL AGENDA REPORT MEETING DATE: AGENDA #: PREPARED BY: AGENDA ITEM: DISCUSSION: APRIL 19, 2010 10C Jerilyn Erickson, Finance Director CONSIDER APPROVAL OF A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO ENTER INTO TWO STANDARDIZED WATER TOWER ANTENNAE AGREEMENTS WITH CLEAR WIRELESS LLC Introduction The purpose of this agenda item is to consider entering into two Water Tower Antennae Agreements with Clear Wireless LLC. Clear Wireless LLC has requested that they be allowed to install antennae on the Tower Street Water Tower and the Crest Avenue Water Tower and associated equipment shelters on each of the properties. Historv The City currently has the following Antennae Agreements in place: Site Lessee Contract Date Cingular I AT&T 2006 Sprint 2000 T -Mobile 1999 Verizon 1991 Cingular / AT&T 2002 Sprint 1997 T -Mobile 2000 Verizon 1997 T -Mobile 2008 Verizon 2005 4741 Tower Street (Tower Street Water Tower) 5560 Cedarwood Street (Crest Avenue Water Tower) 3600 - 170m Street SE (Willows Park Power Pole) 14998 Wilds Parkway (Civil Defense Tower) Current Circumstances Clear Wireless LLC would like to place their antennae on both water towers in the City of Prior Lake. The City Attorney and Staff updated the City's Standardized Water Tower Antennae Agreement and provided Clear Wireless LLC with the executable documents. Draft copies of both Agreements are included with this agenda report. The Agreements have an initial term of approximately five years. The Agreements shall expire at midnight on December 31st of the fourth (4th) anniversary date thereof (December 31, 2014). The initial term of the Agreements will automatically extend for three (3) additional five (5) year terms subject to provisions in the Agreement. www.cityofpriorlake.com Phone 952.447.9800 I Fax 952.447.4245 FINANCIAL IMPACT: ALTERNATIVES: RECOMMENDED MOTION: ReVie~:f Frank Boyles, ity ATTACHME Site drawings submitted by Clear Wireless LLC for both sites have been reviewed and approved by KLM Engineering, an engineering firm hired by the City. The costs associated with the reviews were charged to Clear Wireless prior to any work being done. As a courtesy to Clear Wireless we have placed this item on the April 19 agenda with the understanding that if the approved and signed agreements are not returned to staff by meeting time we will ask that the item be removed from the agenda. Each of the Antennae Agreements has an initial fee for 2010 of $22,100.00 which would be prorated from the effective date of the Agreement. Thereafter, the annual Fee shall increase each January 1 by the previous year's fee plus five percent (5%). Additional fees will apply for installation of Supplemental Equipment structures or Equipment Shelters. These are one-time non-refundable fees for use of the property. The revenues generated from these Antennae Agreements will be recorded in the General Fund. Clear Wireless LLC will also be required to obtain the necessary building permits. The following alternatives are available to the City Council: 1. Adopt A Resolution Authorizing the Mayor and City Manager to enter into Two Standardized Water Tower Antennae Agreements with Clear Wireless LLC. 2. Table this item for a specific reason. Alternative 1. nager 1. Standardized Water Tower Antennae Agreement with Clear Wireless LLC for Tower Street Water Tower. 2. Standardized Water Tower Antennae Agreement with Clear Wireless LLC for Crest Avenue Water Tower. o~ PRIO~ to.~ 4646 Dakota Street S.E. U ~ Prior Lake, MN 55372-1714 f'1oJ ..- - -. -..--.--------- ~11VNESO~~ RESOLUTION 10-xxx A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE THE CITY'S STANDARDIZED ANTENNAE AGREEMENT WITH CLEAR WIRELESS LLC FOR THE TOWER WATER TOWER Motion By: Second By: WHEREAS, Various cellular companies require locations for their antennas; and WHEREAS, The public safety, health and welfare is served when cell phone coverage is uniform and unbroken; and WHEREAS, Clear Wireless LLC desires to erect antennas on City water towers; and WHEREAS, The City Council has adopted a standardized least agreement; and WHEREAS, Clear Wireless LLC has executed said agreement. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. The Mayor and City Manager are hereby authorized to execute the standardized antennae lease agreement on behalf of the City. PASSED AND ADOPTED THIS 19th DAY OF APRIL, 2010. YES NO Myser Erickson Hedberg Keeney Millar Myser Erickson Hedberg Keeney Millar Frank Boyles, City Manager ":'v.JW. cityofpriorlak~,c()rn Phone 952.447.9800 I Fax 952.447.4245 o~ PRJ04> C "" ~ 4646 Dakota Street S.E. U ~ l:'; Prior Lake, MN 55372-1714 ~INNESO~~ RESOLUTION 10-xxx A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE THE CITY'S STANDARDIZED ANTENNAE AGREEMENT WITH CLEAR WIRELESS LLC FOR THE SAND POINT WATER TOWER Motion By: Second By: WHEREAS, Various cellular companies require locations for their antennas; and WHEREAS, The public safety, health and welfare is served when cell phone coverage is uniform and unbroken; and WHEREAS, Clear Wireless LLC desires to erect antennas on City water towers; and WHEREAS, The City Council has adopted a standardized least agreement; and WHEREAS, Clear Wireless LLC has executed said agreement. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. The Mayor and City Manager are hereby authorized to execute the standardized antennae lease agreement on behalf of the City. PASSED AND ADOPTED THIS 19th DAY OF APRIL, 2010. YES NO Myser Erickson Hedberg Keeney Millar Myser Erickson Hedberg Keeney Millar Frank Boyles, City Manager www.city9fpriorlake.com ,> ,", ~ ,:.; .,", ; , :.;; :.> u. ....! ;' .;.; ;';.. ;.' :.~\ .:..:. r; ;. '..:. ,"i' :.>"<! ", ~ Phone 952.447.9800 I Fax 952.447.4245 STANDARD WATER TOWER ANTENNAE AGREEMENT THIS AGREEMENT is made and entered into this day of ,2010. by and between the CITY OF PRIOR LAKE, MINNESOTA, a Minnesota municipal corporation (hereinafter referred to as the "CITY"), and CLEAR WIRELESS LLC, a Nevada limited liability company (hereinafter referred to as "COMMUNICATION COMPANY"). (collectivelv "PARTIES"). RECITALS A. The CITY is the fee owner of certain land located in Prior Lake, Scott County, Minnesota legally described on Exhibit A, which Exhibit is attached hereto (hereinafter referred to as the "Property") which may be subject to existing easements. 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. COMMUNICATION COMPANY desires to install, operate and maintain a devisees) or equipment used for the transmission and reception ofradio 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 "Supplemental Equipment" or "Equipment Shelter" or collectively as "Ground Equipment.") in accordance with the terms of this Agreement. D. CITY desires to minimize the number of towers, Ground Equipments, and monopoles located within the CITY by making City Water Towers and other suitable City Structures available to communication companies in order to provide enhanced services to the residents of the City Prior Lake, E. The PARTIES desire to enter into this Agreement relating to the use of the CITY Water Tower. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing recitals and for other good, valuable and fair consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals. The Recitals set forth above are incorporated herein and made part of this Agreement as if fully set out herein. 2. 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 government-related communication systems for the City of Prior Lake and other governmental units for communication and safety purposes. Subject to the terms of this Agreement, the CITY authorizes COMMUNICATION COMPANY's non-exclusive use of a certain portion of 1 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 COMMUNICATION COMPANY is authorized to install the Antennae and the location of the Equipment Shelter ("Site Plan") or COMMUNICATION COMPANY's Ground Equipment on the Property are depicted on Exhibit B attached hereto and incorporated herein. 3. Term. This Agreement provides for three (3) five (5) year terms. The first term shall be referred to as the "Initial Term." The Initial Term of this Agreement shall commence on the date set out in the first paragraph of this Agreement, referred to herein as the "Effective Date," subject to the COMMUNICATION COMPANY satisfying all of the conditions described in Exhibit C, which is incorporated by reference and made a part of this Agreement. The first year of the Initial Term shall run from the Effective Date to December 31 sl. 3.1 This Agreement shall expire at midnight on December 31 st of the fourth (4th) anniversary date thereof ("Initial Term"). The Initial Term of this Agreement shall automatically extend for three (3) additional five (5) year terms ("Renewal Term"), subject to the provisions in Paragraph 5, provided that COMMUNICATION COMPANY does not give CITY written notice of its intention not to extend the Agreement at least sixty (60) days prior to the expiration of the then-existing term. 4. Fee and Comnensation A. Initial and Renewal Terms. COMMUNICATION COMPANY agrees to pay CITY an annual Fee as provided for herein. The Fee for the first year shall be Twenty Two Thousand One Hundred and 001100 Dollars ($22,100.00). Thereafter, the annual Fee shall increase each January 1, beginning on January 1, 2011' by the amount of the previous year's fee plus five percent (5%). The Fee shall be paid by COMMUNICATION COMPANY in one payment that must be received by the CITY prior to January 1 st of each year. B. First Year Fee Pro-rated. The Fee for the first year of the Initial Term shall be pro- rated from the Effective Date through December 31 and shall be paid to CITY in full within fifteen (15) business days of the Effective Date. If the COMMUNICATION COMPANY does not meet the requirements referenced in Paragraph 5 below by a date which is six (6) months following the Effective Date, the CITY may at its sole discretion, terminate this Agreement. If terminated the CITY shall refund the pro rata share of the Fee less Three Thousand Dollars ($3000.00) for expenses associated with the drafting and negotiation of this Agreement. C. In addition to the annual fee, COMMUNICATION COMPANY agrees to timely pay its pro rata share of any taxes or payment in lieu of taxes required as a direct result of this Agreement. The pro rata share shall be based on the amount of space occupied by the COMMUNICATION COMPANY on the Property which is taxed compared to the total amount of space occupied or used by other COMMUNICATION COMPANIES or users, other than the CITY or another governmental entity. 2 D. Eauioment Shelters and Suoolemental Eauioment Fee. a. "Suoolemental Eauioment" is any structure positioned on the Property, which is integral to COMMUNICATION COMPANY'S use of the City's Water Tower, but not an Equipment Shelter. In addition to the Fee(s) and payments provided for herein, COMMUNICATION COMPANY agrees to pay CITY a one-time non-refundable fee of Seven Thousand Five Hundred Dollars and nollOO ($7500.00) as compensation for COMMUNICATION COMPANY's use of the Property to install its Supplementary Equipment. Exhibit D depicts the size, dimensions and location of the SUPPLEMENTAL EQUIPMENT. b. Eauioment Shelters. In addition to the Fees and payments provided for above, COMMUNICATION COMPANY shall pay City a one-time non-refundable fee of Twelve Thousand Five Hundred Dollars ($12,500.00) as compensation for COMMUNICATION 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. COMMUNICATION COMPANY's use of the Equipment Shelter shall be exclusive during the Initial or any Renewal Term. The exterior finish of the Equipment Shelter must be brick or a material which simulates the appearance of 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, which approval shall not be unreasonably, conditioned, withheld or delayed. The appearance of the Equipment Shelter, depicted in Exhibit D, shall match existing Equipment Shelter(s). COMMUNICATION COMPANY shall provide for and be responsible for all utility services used by COMMUNICATION COMP ANY. COMMUNICATION COMPANY shall be responsible for the maintenance of the Equipment Shelter. 5. Use. A. COMMUNICATION COMPANY'S right to use the Property and Water Tower is expressly made contingent upon its obtaining all the certificates, permits, zoning and other approvals that may be required by any federal, state or local authority. This shall include the Interference Study provided for in Subparagraph 12(D) that shall be conducted at COMMUNICATION COMPANY'S expense. B. COMMUNICATIONS COMPANY may use the Property and the Water Tower solely for the purpose of constructing, installing, removing, replacing, maintaining, and operating the Antennae and Equipment, subject to such modifications and alterations as may result from changes or improvements in technology. Prior to COMMUNICATION 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, at its discretion, to approve the manner of installation and the location on the Water Tower where COMMUNICATION COMPANY installs the Antennae, which approval shall not be unreasonably withheld or delayed. COMMUNICATION COMPANY shall not 3 install any subsequent antennae beyond the number agreed to and represented in Exhibit B without negotiating a written addendum to this Agreement, which addendum shall include an increase in the annual rental fee and reimbursement to the CITY for the cost incurred in drafting and negotiating any addenda. C. COMMUNICA nON COMP ANY shall store all Equipment related to the Antennae in the Equipment Shelter. D. CITY will not in any way be responsible for the Antennae, the related Equipment, the Equipment Shelter, the Supplemental Equipment or any personal property actually placed on the Property or in the Equipment Shelter or installed on the Water Tower by COMMUNICATION COMPANY. E. The Antennae and the related Equipment shall remain the property of COMMUNICATION COMPANY, subject to the terms of Paragraphs 8 and 9. F. The CITY shall provide COMMUNICATION COMPANY with twenty-four (24) hour, seven (7) days 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 COMMUNICATION COMPANY'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 COMMUNICATION COMPANY if the CITY incurs any costs associated with providing COMMUNICATION COMPANY access to Water Tower, Property, Supplemental Equipment or Equipment Shelter except in those cases where cost is incidental to City obtaining access for its own purposes unrelated to COMMUNICATION COMPANY's use of Antennae, Water Tower, Supplemental Equipment 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, Equipment Shelter, Supplemental Equipment or Water Tower. The CITY shall not be responsible for damages or otherwise for interruption in COMMUNICATION COMPANY services if the interruption is due to an emergency or the performance of maintenance and repairs on the Water Tower. If COMMUNICATION COMPANY requires access it shall provide CITY with forty-eight (48) hours notice. G. COMMUNICATION COMPANY shall take all steps necessary to prevent any mechanics' or material men's liens from being placed on the Property as a result of COMMUNICATION COMPANY's use of the Water Tower, Property, Supplemental Equipment, Equipment Shelter or Antennae, and specifically indemnifies the CITY from such liens. H. The color of the Antennae and any Equipment placed on the Water Tower shall match the color of the Water Tower. I. COMMUNICATION COMPANY shall pay all personal and real property taxes assessed against the Antennae, related Equipment, Supplemental 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 COMMUNICATION COMPANY to pay such property taxes, subject to the provisions in Subparagraph 4(C). 4 J. Any access easements rented to COMMUNICATION COMPANY shall terminate upon termination of this Water Tower Antennae Agreement and COMMUNICATION COMP ANY agrees to execute any and all documents necessary to remove the easement from the Property. 6. Maintenance of Antennae: Modification. COMMUNICATION COMPANY shall maintain the Antennae, Equipment, Supplemental Equipment and Equipment Shelter in good condition at all times, at its sole cost and expense. COMMUNICA TION 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. Upon the written request of the CITY, but no more than once every five (5) years from the Effective Date of this Agreement, or upon the material removal, modification or replacement of antennae and/or equipment, COMMUNICATION 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 COMMUNICA TONS 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. COMMUNICATION 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 COMMUNICATION COMPANY 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 year Fee. These remedies are nonexclusive and the CITY expressly reserves its rights to pursue any available legal or equitable remedies. 7. Utilities. COMMUNICATION COMPANY shall separately meter and pay all electric and other utility services that are associated with the use of the Property, the Water Tower, the Supplemental Equipment and the Equipment Shelter. The CITY agrees to cooperate with COMMUNICATION COMPANY in its efforts to connect the Antennae and Equipment to existing utility service at COMMUNICATION COMPANY's expense and to grant such easements as may be reasonably necessary to enable utility companies to provide service to the Antennae, Supplemental Equipment and Equipment Shelter. The CITY makes no representation or warranty regarding the availability of electric or other utility service to the Property, Water Tower, Supplemental Equipment or the Equipment Shelter. COMMUNICATION COMPANY shall have the right to install utilities, at COMMUNICATION COMPANY's expense, and to improve the present utilities on the Property including, but not limited to, the installation of emergency power generators within an Equipment Shelter. Companies that are using Supplemental Equipment may transport an emergency generator to the Property. The emergency generator must be removed once power is restored to the Property. The CITY shall not be liable, and COMMUNICATION COMPANY waives any and all claims against the CITY, for any interruption of electrical or other utility services to the Property, Antennae, Supplemental Equipment or Equipment Shelter. 8. Removal of Antennae and Eouioment. 5 A. COMMUNICATION COMPANY shall remove the Antennae and all personal and real 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. COMMUNICATION 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 and loss by casualty or other causes beyond COMMUNICATION COMPANY's control. Notwithstanding the foregoing, COMMUNICATION COMPANY will not be responsible for the replacement of any trees, shrubs or other vegetation, nor will COMMUNICATION COMPANY be required to remove any underground utilities from the Property. In the event COMMUNICATION COMPANY fails to remove any component, antennae or appurtenant equipment from the Water Tower or restore the Water Tower and Property to their original condition, within ninety (90) days of the termination of this Agreement, the CITY shall have the right to remove COMMUNICATION COMPANY'S Antennae, Equipment, Equipment Shelter or Supplemental Equipment from the CITY's Property and make restorations thereto at the sole cost and expense of the COMMUNICATION COMPANY. If COMMUNICATION COMPANY fails to reclaim its property within ninety (90) days from the date the CITY provides COMMUNICATION COMPANY with notice to remove its property, the property will be removed by the CITY and without further notice be deemed abandoned. No property will be released by the CITY to COMMUNICATION COMPANY until COMMUNICATION COMPANY has reimbursed the CITY for all expenses related to removing the property 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 or Supplemental Equipment 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 COMMUNICATION COMPANY be removed and the Property returned to its original condition. The COMMUNICATION COMPANY shall remove any Supplemental Equipment it installed on the Property in lieu of an Equipment Shelter. C. Notwithstanding the paragraphs 7 A and 7B, COMMUNICATIONS COMPANY will not be responsible for the replacement of any trees, shrubs or other vegetation. 9. Termination. A. Except as otherwise provided herein, this Agreement may be terminated by either party upon sixty (60) days' written notice to the other party, only as follows: (a) by either party providing written notice to the other party that a default of a covenant or term has occurred and the defaulting party has failed to cure the default within sixty (60) days from the date the written notice was mailed or personally delivered to the other party. The right to terminate the Agreement is not intended to be an exclusive remedy; and the parties reserve the right to pursue other remedies available to them in law or equity; 6 (b) by COMMUNICATION 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, Supplemental Equipment and Equipment Shelter; (c) by COMMUNICATION COMPANY for cause if the Property is or becomes unacceptable for technological reasons under COMMUNICATION COMPANY's design or engineering specifications for its antennae or related Equipment; (d) by the CITY if COMMUNICATION COMPANY fails to tender the annual rental payment within thirty (30) days after receipt of written notice from the CITY of such failure to pay; (e) by the CITY if it reasonably determines, after consultation with a licensed structural engineer that the Water Tower is structurally unsound for use as a Water Tower, for any reason including but not limited to considerations related to the age of the structure, damage to or destruction of all or part of the Water Tower or the Property from any source, or factors relating to the condition of the Property; (f) by the CITY, as a matter of right, upon six (6) months prior written notice to COMMUNICATION COMPANY, if its City Council decides, for any reason, to discontinue use of the Water Tower for all purposes, in which event COMMUNICATION COMP ANY 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 COMMUNICATION 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 COMMUNICATION COMP ANY or for any other CITY breach of this Agreement, the CITY's liability for damages to COMMUNICATION COMP ANY 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 COMMUNICATION COMPANY as a going concern, future expectation of profits, loss of business or profit or related damages to COMMUNICATION COMPANY. The CITY's liability for damages is further limited by the liability protections set out in Minnesota Statute Chapter 466, as it may be amended from time to time. 7 C. CI TY and COMMUNICATION COMPANY acknowledge that the technology to transmit and receive cellular telephone signals and other types of wireless transmissions continue to change at an unpredictable rate and unprecedented rate. Cellular telephones are rapidly being replaced by wireless devices that have transformed cellular telephones into wireless communication tools that provide far more functionality than mere wireless verbal communication. The parties acknowledge that the terms and conditions of this Agreement may not be relevant or address the needs of the parties as technology changes. If this Agreement no longer protects the respective interests of the parties because the technological changes within the cellular telephone industry have created new and unforeseen issues that heretofore have not been contemplated by the parties, the parties agree to renegotiate this Agreement in good faith. 10. Non-Exclusive Use. Upon paying the Fee as required herein, COMMUNICATION COMPANY 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 COMMUNICATION COMPANY from the Antennae. 11. Interference Caused bv Antennae. COMMUNICATION COMPANY agrees that the following priorities of use shall apply in descending order in the event communication interference or other conflict results while this Agreement is in effect, and COMMUNICATION COMPANY'S use shall be subordinate to higher priority users. User Priority: 1. The CITY; 11. Public Safety Agencies; including law enforcement, fire and ambulance services, that are not part of the CITY; and 111. Other governmental agencies where use is not related to public safety 12. Interference with Antennae Ooerations. A. Temoorarv Interruotions 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 COMMUNICATION COMPANY to discontinue its operation. COMMUNICATION COMP ANY 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 COMMUNICATION COMPANY, the CITY shall notify COMMUNICATION COMPANY as soon as possible after its action and give its reason for taking the action. The CITY shall not be liable to COMMUNICATION COMP ANY or any other party for any interruption in COMMUNICATION COMPANY's service or interference with COMMUNICATION COMPANY's operation of its Antennae, Equipment, Supplemental 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, COMMUNICATION COMPANY's sole remedy shall be the right to terminate this Agreement within its sole discretion. 8 B. With Structure. COMMUNICATION COMPANY 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 COMMUNICATION COMPANY's cessation of action is material to COMMUNICATION COMPANY's use of the Water Tower and Property and such cessation frustrates COMMUNICATION COMPANY's use of the Water Tower and Property, within COMMUNICATION COMPANY's sole discretion, COMMUNICATION COMPANY shall have the immediate right to terminate this Agreement. C. With Hi2:her Priority Users. If COMMUNICATION COMPANY's Equipment causes impermissible interference with the parties identified in Paragraph 10 above or with preexisting tenants, COMMUNICATION 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, COMMUNICATION 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 thirty (30) days after COMMUNICATIONS COMPANY received CITY's written notice, CITY may at its option terminate this Agreement immediately. D. Interference Studv - New Occunants. Upon written notice by CITY that it has a bona fide request from any other party to use or occupy an area including or in close proximity to the Water Tower and Property, COMMUNICATION 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 require a new commercial applicant to retain an independent registered professional engineer, acceptable to the CITY, to perform a necessary interference study to determine if the new applicant's frequencies will cause harmful radio interference to COMMUNICATION COMPANY. CITY shall require the new applicant to pay for such interference studies. CITY agrees that it will not enter into an Agreement with a future commercial user to occupy the Water Tower and Property, if such party's use is reasonably anticipated to interfere with COMMUNICATION COMPANY's operation of its Antennae or Equipment. E. If there is interference with COMMUNICATION COMPANY's operations then CITY will make a good faith effort to assist COMMUNICATION COMPANY to determine the cause of the interference and a possible resolution. 13. Future Develooment. COMMUNICATION COMPANY 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 at the sole discretion of the CITY. In the event that CITY undertakes such use, then the CITY and COMMUNICATION COMPANY agree to cooperate with one another as necessary to facilitate both parties use of the Property. 9 14. Indemnitv. A. By COMMUNICATION COMPANY. COMMUNICATION COMPANY agrees to defend, indemnify and hold harmless CITY and its elected officials, officers, employees, attorneys, 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 performance of this Agreement, except those which arise solely from the negligence, willful misconduct, or other fault of the CITY. COMMUNICATION COMP ANY shall defend all claims arising out of the installation, operation, use, maintenance, repair, removal, or presence of COMMUNICATION COMPANY's Antennae, Equipment, Appurtenant Equipment, Shelter, Supplemental Equipment and any related facilities on the Property. B. CITY agrees to defend, indemnify and hold harmless COMMUNICATIONS COMP ANY 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 caused by the City, which may be asserted against or incurred by the COMMUNICATIONS COMP ANY or for which the COMMUNICATIONS COMP ANY may be liable in the performance of this Agreement, except those which arise solely from the negligence, willful misconduct, or other fault of the COMMUNICATIONS COMPANY. C. 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 CITY and COMMUNICATION COMPANY agree to hold harmless and indemnify the other from, and to assume all duties, responsibilities and liabilities at the sole cost and expense of the indemnifying party for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is related to (i) the indemnifying party's failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or matters as may now or hereafter be in effect, or (ii) any environmental or industrial hygiene conditions that arise out of or are in any way related to the condition of the Water Tower and/or Property and activities conducted by the party thereon, unless the environmental conditions are caused by the other party. For purposes of this Agreement "Hazardous Materials" shall be interpreted broadly and specifically includes, without limitation, asbestos, fuel batteries or any hazardous substance, waste, or materials as defined in any federal, state, or local environmental or safety law or regulations including, but not limited to, CERCLA. D. COMMUNICATION COMPANY's Warrantv Regarding Hazardous Materials or Waste. COMMUNICATION COMPANY represents and warrants that its use of the Water 10 Tower, Property, Supplemental Equipment and Equipment Shelter will not generate any hazardous materials, substances or waste and that COMMUNICA nON COMPANY will not store, dispose of any hazardous materials, waste or substances on the Property, nor will COMMUNICATION COMPANY transport to or over the Water Tower or Property, in violation of any applicable law or regulations pertaining to Hazardous Materials, unless COMMUNICA nON COMPANY specifically informs the CITY thereof in writing forty-eight (48) hours prior to such storage, disposal or transport, or otherwise as soon as COMMUNICATION COMPANY becomes aware of the existence of any Hazardous Materials on the Property in violation of any applicable law or regulation. The obligations of this Paragraph 13 shall survive the expiration or other termination of this Agreement. 15. Dama!!e to Water Tower or to the Prooertv. COMMUNICATION COMPANY'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 COMMUNICATION COMPANY, or those of its agents, representatives, employees, contractors, or subcontractors, cause such damage or interference, COMMUNICATION COMPANY will commence and diligently proceed to cure the damage or interference within thirty (30) days after receipt of written notice. If COMMUNICATION COMPANY 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 COMMUNICATION COMPANY. 16. Casualty. If any portion of the Property, Water Tower or Antennae is damaged by any casualty and such damage materially and adversely affects COMMUNICATION COMPANY's use of the Water Tower or Property, COMMUNICATION COMPANY may give thirty (30) days' notice of its intention to terminate this Agreement. Such notice must be given within fifteen (15) days of the casualty. If the Agreement is terminated under the provisions of this Paragraph, a pro rata portion of the annual rental shall be refunded to COMMUNICATIONS COMPANY for any portion of the year after the termination of this Agreement. 17. Ouiet Eniovment. COMMUNICATION COMPANY, upon paying the Fee(s), 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, the CITY agrees to obtain from the holder of such encumbrance an Agreement that COMMUNICATION 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 COMMUNICATION COMPANY from the Property. 18. Insurance. A. As long as this Agreement is in effect, COMMUNICATION COMPANY shall maintain a general liability insurance policy that provides coverage for the Property and the Water Tower from any damage to property or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than Two Million Dollars ($2,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in Paragraph 14 of this Agreement. Said insurance policy shall list the 11 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 sixty (60) days prior written notice. COMMUNICATION COMPANY shall provide the CITY with a Certificate of Insurance for said policy naming the CITY as an additional insured. The insurance shall prove that it may not be cancelled without providing CITY with sixty (60) days written notice. Each year when COMMUNICATION COMPANY receives a renewal notice for the insurance it shall provide the CITY with a copy prior to the end of the preceding year's coverage. COMMUNICATION COMPANY shall also maintain fire and extended coverage insurance insuring COMMUNICATION COMPANY and CITY's personal property for its full insurable value (subject to reasonable deductibles). B. Notwithstanding anything in this Agreement to the contrary, each party releases the other party from all liability, whether for negligence or otherwise, in connection with a loss covered by any policies which the releasing party carries with respect to the Property, including the Antennae, Supplemental Equipment and Equipment Shelter, but only to the extent that such loss is covered 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. COMMUNICATIONS COMPANY shall annually provide CITY with proof of workers' compensation insurance covering all of COMMUNICATION COMPANY's employees and agents who access the Property. 19. Condition of Prooertv. COMMUNICATION COMPANY acknowledges and agrees that the CITY makes no representations or warranties regarding the suitability of the Property or the Water Tower for COMMUNICATION 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. 20. 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 of eminent domain, COMMUNICATION COMPANY shall not be entitled to any portion of the award paid for the taking and the CITY shall receive full amount of such award. COMMUNICATION COMPANY 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, COMMUNICATION 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 COMMUNICATION COMPANY on account of any and all damage to COMMUNICATION COMPANY's business and any costs or expenses incurred by COMMUNICATION COMPANY 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 power shall be treated as a taking by condemnation. 12 21. 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. 22. Miscellaneous. A. Whole Agreement: Modification. This Agreement contains all of the terms and conditions relating to the rights granted herein, and replaces any oral agreements or other negotiations between the parties relating to the Agreement. No modifications to this Agreement shall be valid unless and until they have been placed in writing and signed by both parties hereto. B. Severabilitv. If any provision 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 provisions of this Agreement, which shall continue in full force and effect as if the offending provision never existed. C. Authoritv. Each party represents and warrants that it has full authority to enter into and to sign this Agreement. D. Counteroarts. The parties may sign this Agreement in counterparts. E. Binding Effect. The terms, conditions, representation and covenants of this Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the CITY and COMMUNICATION CaMP ANY. F. Assignment and Delegation. (a) Bv COMMUNICATION COMPANY. Except for COMMUNICATION COMPANY's affiliates or subsidiaries, COMMUNICATION 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 may not unreasonably withhold. For purposes of this Subparagraph, an "affiliate" means an entity that controls, is controlled by, or is under common control with COMMUNICATION COMPANY. Upon acceptance by the CITY of such assignment, transfer or sale, COMMUNICA nON COMPANY will be relieved of all future performance, liabilities and obligations under this Agreement. (b) Bv the CITY. The CITY may freely assign its rights and delegate its duties under this ]3 Agreement to a joint powers organization of which it is now a member or may become a member in the future. 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 4646 Dakota Street SE Prior Lake, MN 55372 A TTN: City Manager Ifto Communication Co: Clear Wireless LLC 4400 Carillon Point Kirkland, W A 98033 ATTN: Site Leasing With a Copy to: Clear Wireless LLC 4400 Carillon Point Kirkland, W A 98033 A TTN: Legal Department H. Estoppel 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. I. GoverninlZ Law. This Agreement shall be construed in accordance with the laws of the State of Minnesota. J. Broker. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker, and shall hold the other party harmless from any claims for commission by such broker. K. Memorandum of AlZreement. CITY agrees to cooperate with COMMUNICATION COMPANY in executing reasonable documents (including a Memorandum of Lease) necessary to protect COMMUNICATION COMPANY's rights hereunder or COMMUNICATION COMPANY's use of the Water Tower, Property, and Supplemental Equipment or Equipment Shelter. L. HeadinlZs, 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. 14 IN WITNESS HEREOF, the parties have executed this Agreement as of the date first above written. For Form and Execution CITY OF PRIOR LAKE By Suesan Lea Pace Its City Attorney By Mike Myser Its City Mayor By Frank Boyles, Its City Manager COMMUNICATION COMPANY By: Its: By: Its: 15 STATE OF MINNESOTA) )ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this day of 2010. by Mike Myser and Frank Boyles, the Mayor and City Manager of the City of Prior Lake, Minnesota, a municipal corporation, on behalf ofthe City, and pursuant to authority granted by its City Council. Notary Public STATE OF ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this 2010. by and the and day of . a of corporation, on behalf of the corporation. Notary Public DRAFTED BY: HALLELAND, LEWIS, NILAN, SIPKINS & JOHNSON 600 Pillsbury Center South 220 South Sixth Street Minneapolis, MN 55402-4501 16 EXHIBIT A to WATER TOWER ANTENNAE AGREEMENT (Legal Description) Pursuant to that certain Water Tower Antennae Agreement dated . between the City of Prior Lake as Lessor and Clear Wireless LLC 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: Lot 1, Block 1, Crest Water Tower Addition and commonly known as 5560 Cedarwood Street, Prior Lake, MN 55372. 17 EXHIBIT B to WATER TOWER ANTENNAE AGREEMENT (Site Plan) 18 EXHIBIT C to WATER TOWER ANTENNAE 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. COMMUNICATION COMPANY's technical reports must establish to its exclusive satisfaction that the property is capable of being suitably engineered to accomplish COMMUNICATION COMPANY's intended use ofthe Property. ]9 EXHIBIT D to WATER TOWER ANTENNAE AGREEMENT (Equipment Shelter) Quantity: Description: Structure: Structural Steel Skid. Floor. Walls. Ceilin2:. Roof. Exterior. 20 STANDARD WATER TOWER ANTENNAE AGREEMENT THIS AGREEMENT is made and entered into this day of ,2010. by and between the CITY OF PRIOR LAKE, MINNESOTA, a Minnesota municipal corporation (hereinafter referred to as the "CITY"), and CLEAR WIRELESS LLC, a Nevada limited liability company (hereinafter referred to as "COMMUNICATION COMPANY"), (collectivelv "PARTIES"). RECITALS A. The CITY is the fee owner of certain land located in Prior Lake, Scott County, Minnesota legally described on Exhibit A, which Exhibit is attached hereto (hereinafter referred to as the "Property") which may be subject to existing easements. 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. COMMUNICATION COMPANY desires to install, operate and maintain a devisees) or equipment 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 "Supplemental Equipment" or "Equipment Shelter" or collectively as "Ground Equipment.") in accordance with the terms of this Agreement. D. CITY desires to minimize the number of towers, Ground Equipments, and monopoles located within the CITY by making City Water Towers and other suitable City Structures available to communication companies in order to provide enhanced services to the residents of the City Prior Lake, E. The PARTIES desire to enter into this Agreement relating to the use of the CITY Water Tower. AGREEMENTS NOW, THEREFORE, in consideration ofthe 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. Recitals. The Recitals set forth above are incorporated herein and made part of this Agreement as if fully set out herein. 2. Authorization to Use Water Tower Snace. 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 government-related communication systems for the City of Prior Lake and other governmental units for communication and safety purposes. Subject to the terms of this Agreement, the CITY authorizes COMMUNICATION COMPANY's non-exclusive use of a certain portion of 1 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 COMMUNICATION COMPANY is authorized to install the Antennae and the location of the Equipment Shelter ("Site Plan") or COMMUNICATION COMPANY's Ground Equipment on the Property are depicted on Exhibit B attached hereto and incorporated herein. 3. Term. This Agreement provides for three (3) five (5) year terms. The first term shall be referred to as the "Initial Term." The Initial Term of this Agreement shall commence on the date set out in the first paragraph of this Agreement, referred to herein as the "Effective Date," subject to the COMMUNICATION COMPANY satisfying all of the conditions described in Exhibit C, which is incorporated by reference and made a part of this Agreement. The first year of the Initial Term shall run from the Effective Date to December 31 st. 3.1 This Agreement shall expire at midnight on December 31st of the fourth (4th) anniversary date thereof ("Initial Term"). The Initial Term of this Agreement shall automatically extend for three (3) additional five (5) year terms ("Renewal Term"), subject to the provisions in Paragraph 5, provided that COMMUNICATION COMPANY does not give CITY written notice of its intention not to extend the Agreement at least sixty (60) days prior to the expiration of the then-existing term. 4. Fee and Comnensation A. Initial and Renewal Terms. COMMUNICATION COMPANY agrees to pay CITY an annual Fee as provided for herein. The Fee for the first year shall be Twenty Two Thousand One Hundred and 00/100 Dollars ($22,100.00). Thereafter, the annual Fee shall increase each January 1, beginning on January 1,2011' by the amount of the previous year's fee plus five percent (5%). The Fee shall be paid by COMMUNICATION COMPANY in one payment that must be received by the CITY prior to January 1 st of each year. B. First Year Fee Pro-rated. The Fee for the first year ofthe Initial Term shall be pro- rated from the Effective Date through December 31 and shall be paid to CITY in full within fifteen (15) business days of the Effective Date. If the COMMUNICATION COMPANY does not meet the requirements referenced in Paragraph 5 below by a date which is six (6) months following the Effective Date, the CITY may at its sole discretion, terminate this Agreement. If terminated the CITY shall refund the pro rata share of the Fee less Three Thousand Dollars ($3000.00) for expenses associated with the drafting and negotiation of this Agreement. C. In addition to the annual fee, COMMUNICATION COMPANY agrees to timely pay its pro rata share of any taxes or payment in lieu of taxes required as a direct result of this Agreement. The pro rata share shall be based on the amount of space occupied by the COMMUNICATION COMPANY on the Property which is taxed compared to the total amount of space occupied or used by other COMMUNICATION COMPANIES or users, other than the CITY or another governmental entity. 2 D. Eauinment Shelters and Sunnlemental Eauinment Fee. a. "Suoolemental Eauioment" is any structure positioned on the Property, which is integral to COMMUNICATION COMPANY'S use of the City's Water Tower, but not an Equipment Shelter. In addition to the Fee(s) and payments provided for herein, COMMUNICATION COMPANY agrees to pay CITY a one-time non-refundable fee of Seven Thousand Five Hundred Dollars and no/100 ($7500.00) as compensation for COMMUNICATION COMPANY's use of the Property to install its Supplementary Equipment. Exhibit D depicts the size, dimensions and location of the SUPPLEMENTAL EQUIPMENT. b. Eauioment Shelters. In addition to the Fees and payments provided for above, COMMUNICATION COMPANY shall pay City a one-time non-refundable fee of Twelve Thousand Five Hundred Dollars ($12,500.00) as compensation for COMMUNICATION COMPANY's use of a portion of the Property for a building ("Equipment Shelter") for the storage of Equipment related to the Antennae. Exhibit:p depicts the size, location and configuration of the Equipment Shelter on the Property. COMMUNICATION COMPANY's use of the Equipment Shelter shall be exclusive during the Initial or any Renewal Term. The exterior finish of the Equipment Shelter must be brick or a material which simulates the appearance of 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, which approval shall not be unreasonably, conditioned, withheld or delayed. The appearance of the Equipment Shelter, depicted in Exhibit D, shall match existing Equipment Shelter(s). COMMUNICATION COMPANY shall provide for and be responsible for all utility services used by COMMUNICA TION COMPANY. COMMUNICATION COMPANY shall be responsible for the maintenance of the Equipment Shelter. 5. Use. A. COMMUNICATION COMPANY'S right to use the Property and Water Tower is expressly made contingent upon its obtaining all the certificates, permits, zoning and other approvals that may be required by any federal, state or local authority. This shall include the Interference Study provided for in Subparagraph 12(D) that shall be conducted at COMMUNICATION COMPANY'S expense. B. COMMUNICATIONS COMPANY may use the Property and the Water Tower solely for the purpose of constructing, installing, removing, replacing, maintaining, and operating the Antennae and Equipment, subject to such modifications and alterations as may result from changes or improvements in technology. Prior to COMMUNICATION 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, at its discretion, to approve the manner of installation and the location on the Water Tower where COMMUNICATION COMPANY installs the Antennae, which approval shall not be unreasonably withheld or delayed. COMMUNICATION COMPANY shall not 3 install any subsequent antennae beyond the number agreed to and represented in Exhibit B without negotiating a written addendum to this Agreement, which addendum shall include an increase in the annual rental fee and reimbursement to the CITY for the cost incurred in drafting and negotiating any addenda. C. COMMUNICATION COMP ANY shall store all Equipment related to the Antennae in the Equipment Shelter. D. CITY will not in any way be responsible for the Antennae, the related Equipment, the Equipment Shelter, the Supplemental Equipment or any personal property actually placed on the Property or in the Equipment Shelter or installed on the Water Tower by COMMUNICATION COMPANY. E. The Antennae and the related Equipment shall remain the property of COMMUNICATION COMPANY, subject to the terms of Paragraphs 8 and 9. F. The CITY shall provide COMMUNICATION COMPANY with twenty-four (24) hour, seven (7) days 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 COMMUNICATION COMPANY'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 COMMUNICATION COMPANY if the CITY incurs any costs associated with providing COMMUNICATION COMPANY access to Water Tower, Property, Supplemental Equipment or Equipment Shelter except in those cases where cost is incidental to City obtaining access for its own purposes unrelated to COMMUNICATION COMPANY's use of Antennae, Water Tower, Supplemental Equipment 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, Equipment Shelter, Supplemental Equipment or Water Tower. The CITY shall not be responsible for damages or otherwise for interruption in COMMUNICATION COMPANY services if the interruption is due to an emergency or the performance of maintenance and repairs on the Water Tower. If COMMUNICATION COMPANY requires access it shall provide CITY with forty-eight (48) hours notice. G. COMMUNICATION COMPANY shall take all steps necessary to prevent any mechanics' or material men's liens from being placed on the Property as a result of COMMUNICATION COMPANY's use of the Water Tower, Property, Supplemental Equipment, Equipment Shelter or Antennae, and specifically indemnifies the CITY from such liens. H. The color of the Antennae and any Equipment placed on the Water Tower shall match the color of the Water Tower. I. COMMUNICATION COMPANY shall pay all personal and real property taxes assessed against the Antennae, related Equipment, Supplemental 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 COMMUNICATION COMPANY to pay such property taxes, subject to the provisions in Subparagraph 4(C). 4 J. Any access easements rented to COMMUNICATION COMPANY shall terminate upon termination of this Water Tower Antennae Agreement and COMMUNICATION COMPANY agrees to execute any and all documents necessary to remove the easement from the Property. 6. Maintenance of Antennae: Modification. COMMUNICATION COMPANY shall maintain the Antennae, Equipment, Supplemental Equipment and Equipment Shelter in good condition at all times, at its sole cost and expense. COMMUNICATION 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. Upon the written request of the CITY, but no more than once every five (5) years from the Effective Date of this Agreement, or upon the material removal, modification or replacement of antennae and/or equipment, COMMUNICATION 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 COMMUNICA TONS 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. COMMUNICATION 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 COMMUNICATION COMPANY 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 year Fee. These remedies are nonexclusive and the CITY expressly reserves its rights to pursue any available legal or equitable remedies. 7. Utilities. COMMUNICATION COMPANY shall separately meter and pay all electric and other utility services that are associated with the use of the Property, the Water Tower, the Supplemental Equipment and the Equipment Shelter. The CITY agrees to cooperate with COMMUNICATION COMPANY in its efforts to connect the Antennae and Equipment to existing utility service at COMMUNICATION COMPANY's expense and to grant such easements as may be reasonably necessary to enable utility companies to provide service to the Antennae, Supplemental Equipment and Equipment Shelter. The CITY makes no representation or warranty regarding the availability of electric or other utility service to the Property, Water Tower, Supplemental Equipment or the Equipment Shelter. COMMUNICATION COMPANY shall have the right to install utilities, at COMMUNICATION COMPANY's expense, and to improve the present utilities on the Property including, but not limited to, the installation of emergency power generators within an Equipment Shelter. Companies that are using Supplemental Equipment may transport an emergency generator to the Property. The emergency generator must be removed once power is restored to the Property. The CITY shall not be liable, and COMMUNICATION COMPANY waives any and all claims against the CITY, for any interruption of electrical or other utility services to the Property, Antennae, Supplemental Equipment or Equipment Shelter. 5 8. Removal of Antennae and Eouioment. A. COMMUNICATION COMPANY shall remove the Antennae and all personal and real 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. COMMUNICATION 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 and loss by casualty or other causes beyond COMMUNICATION COMPANY's control. Notwithstanding the foregoing, COMMUNICATION COMPANY will not be responsible for the replacement of any trees, shrubs or other vegetation, nor will COMMUNICATION COMPANY be required to remove any underground utilities from the Property. In the event COMMUNICATION COMPANY fails to remove any component, antennae or appurtenant equipment from the Water Tower or restore the Water Tower and Property to their original condition, within ninety (90) days of the termination of this Agreement, the CITY shall have the right to remove COMMUNICATION COMPANY'S Antennae, Equipment, Equipment Shelter or Supplemental Equipment from the CITY's Property and make restorations thereto at the sole cost and expense of the COMMUNICATION COMPANY. If COMMUNICA nON COMPANY fails to reclaim its property within ninety (90) days from the date the CITY provides COMMUNICATION COMPANY with notice to remove its property, the property will be removed by the CITY and without further notice be deemed abandoned. No property will be released by the CITY to COMMUNICATION COMPANY until COMMUNICATION COMPANY has reimbursed the CITY for all expenses related to removing the property 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 or Supplemental Equipment 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 COMMUNICATION COMPANY be removed and the Property returned to its original condition. The COMMUNICATION COMPANY shall remove any Supplemental Equipment it installed on the Property in lieu of an Equipment Shelter. C. Notwithstanding the paragraphs 7A and 7B, COMMUNICATIONS COMPANY will not be responsible for the replacement of any trees, shrubs or other vegetation. 9. Termination. A. Except as otherwise provided herein, this Agreement may be terminated by either party upon sixty (60) days' written notice to the other party, only as follows: (a) by either party providing written notice to the other party that a default of a covenant or term has occurred and the defaulting party has failed to cure the default within sixty (60) days from the date the written notice was mailed or personally delivered to the other party. The right to terminate the Agreement is not intended to be an exclusive remedy; and the parties reserve the right to pursue other remedies available to them in law or equity; 6 (b) by COMMUNICATION 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, Supplemental Equipment and Equipment Shelter; (c) by COMMUNICATION COMPANY for cause if the Property is or becomes unacceptable for technological reasons under COMMUNICATION COMPANY's design or engineering specifications for its antennae or related Equipment; (d) by the CITY if COMMUNICATION COMPANY fails to tender the annual rental payment within thirty (30) days after receipt of written notice from the CITY of such failure to pay; (e) by the CITY if it reasonably determines, after consultation with a licensed structural engineer that the Water Tower is structurally unsound for use as a Water Tower, for any reason including but not limited to considerations related to the age of the structure, damage to or destruction of all or part of the Water Tower or the Property from any source, or factors relating to the condition of the Property; (f) by the CITY, as a matter of right, upon six (6) months prior written notice to COMMUNICATION COMPANY, if its City Council decides, for any reason, to discontinue use of the Water Tower for all purposes, in which event COMMUNICATION 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 COMMUNICATION 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 COMMUNICATION COMP ANY or for any other CITY breach of this Agreement, the CITY's liability for damages to COMMUNICATION 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 COMMUNICATION COMPANY as a going concern, future expectation of profits, loss of business or profit or related damages to COMMUNICATION COMPANY. The CITY's liability for damages is further limited by the liability protections set out in Minnesota Statute Chapter 466, as it may be amended from time to time. 7 C. CI TY and COMMUNICATION COMPANY acknowledge that the technology to transmit and receive cellular telephone signals and other types of wireless transmissions continue to change at an unpredictable rate and unprecedented rate. Cellular telephones are rapidly being replaced by wireless devices that have transformed cellular telephones into wireless communication tools that provide far more functionality than mere wireless verbal communication. The parties acknowledge that the terms and conditions of this Agreement may not be relevant or address the needs of the parties as technology changes. If this Agreement no longer protects the respective interests of the parties because the technological changes within the cellular telephone industry have created new and unforeseen issues that heretofore have not been contemplated by the parties, the parties agree to renegotiate this Agreement in good faith. 10. Non-Exclusive Use. Upon paying the Fee as required herein, COMMUNICATION COMP ANY 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 COMMUNICATION COMPANY from the Antennae. 11. Interference Caused bv Antennae. COMMUNICATION COMPANY agrees that the following priorities of use shall apply in descending order in the event communication interference or other conflict results while this Agreement is in effect, and COMMUNICATION COMPANY'S use shall be subordinate to higher priority users. User Priority: 1. The CITY; 11. Public Safety Agencies; including law enforcement, fire and ambulance services, that are not part of the CITY; and 111. Other governmental agencies where use is not related to public safety 12. Interference with Antennae Onerations. A. Temoorarv Interruotions 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 COMMUNICATION COMP ANY to discontinue its operation. COMMUNICATION 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 COMMUNICATION COMPANY, the CITY shall notify COMMUNICATION COMPANY as soon as possible after its action and give its reason for taking the action. The CITY shall not be liable to COMMUNICATION COMP ANY or any other party for any interruption in COMMUNICATION COMPANY's service or interference with COMMUNICATION COMPANY's operation of its Antennae, Equipment, Supplemental 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, COMMUNICATION COMPANY's sole remedy shall be the right to terminate this Agreement within its sole discretion. 8 B. With Structure. COMMUNICATION COMPANY 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 COMMUNICATION COMPANY's cessation of action is material to COMMUNICATION COMPANY's use of the Water Tower and Property and such cessation frustrates COMMUNICATION COMPANY's use of the Water Tower and Property, within COMMUNICATION COMPANY's sole discretion, COMMUNICATION COMPANY shall have the immediate right to terminate this Agreement. C. With HiQ:her Prioritv Users. If COMMUNICATION COMPANY's Equipment causes impermissible interference with the parties identified in Paragraph 10 above or with preexisting tenants, COMMUNICATION 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, COMMUNICATION 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 thirty (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 use or occupy an area including or in close proximity to the Water Tower and Property, COMMUNICATION 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 require a new commercial applicant to retain an independent registered professional engineer, acceptable to the CITY, to perform a necessary interference study to determine if the new applicant's frequencies will cause harmful radio interference to COMMUNICATION COMPANY. CITY shall require the new applicant to pay for such interference studies. CITY agrees that it will not enter into an Agreement with a future commercial user to occupy the Water Tower and Property, if such party's use is reasonably anticipated to interfere with COMMUNICATION COMPANY's operation of its Antennae or Equipment. E. If there is interference with COMMUNICATION COMPANY's operations then CITY will make a good faith effort to assist COMMUNICATION COMPANY to determine the cause of the interference and a possible resolution. 13. Future DeveloDment. COMMUNICATION COMPANY 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 at the sole discretion of the CITY. In the event that CITY undertakes such use, then the CITY and COMMUNICATION CaMP ANY agree to cooperate with one another as necessary to facilitate both parties use of the Property. 9 14. Indemnitv. A. By COMMUNICATION COMPANY. COMMUNICATION COMPANY agrees to defend, indemnify and hold harmless CITY and its elected officials, officers, employees, attorneys, 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 performance of this Agreement, except those which arise solely from the negligence, willful misconduct, or other fault of the CITY. COMMUNICATION COMPANY shall defend all claims arising out of the installation, operation, use, maintenance, repair, removal, or presence of COMMUNICATION COMPANY's Antennae, Equipment, Appurtenant Equipment, Shelter, Supplemental Equipment and any related facilities on the Property. B. CITY agrees to defend, indemnify and hold harmless COMMUNICATIONS COMPANY 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 caused by the City, which may be asserted against or incurred by the COMMUNICATIONS COMPANY or for which the COMMUNICATIONS COMP ANY may be liable in the performance of this Agreement, except those which arise solely from the negligence, willful misconduct, or other fault of the COMMUNICATIONS COMPANY. C. 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 CITY and COMMUNICATION COMPANY agree to hold harmless and indemnify the other from, and to assume all duties, responsibilities and liabilities at the sole cost and expense of the indemnifying party for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is related to (i) the indemnifying party's failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or matters as may now or hereafter be in effect, or (ii) any environmental or industrial hygiene conditions that arise out of or are in any way related to the condition of the Water Tower and/or Property and activities conducted by the party thereon, unless the environmental conditions are caused by the other party. For purposes of this Agreement "Hazardous Materials" shall be interpreted broadly and specifically includes, without limitation, asbestos, fuel batteries or any hazardous substance, waste, or materials as defined in any federal, state, or local environmental or safety law or regulations including, but not limited to, CERCLA. D. COMMUNICATION COMPANY's Warrantv Rel!ardim! Hazardous Materials or Waste. COMMUNICATION COMPANY represents and warrants that its use of the Water 10 Tower, Property, Supplemental Equipment and Equipment Shelter will not generate any hazardous materials, substances or waste and that COMMUNICATION COMPANY will not store, dispose of any hazardous materials, waste or substances on the Property, nor will COMMUNICATION COMPANY transport to or over the Water Tower or Property, in violation of any applicable law or regulations pertaining to Hazardous Materials, unless COMMUNICATION COMPANY specifically informs the CITY thereof in writing forty-eight (48) hours prior to such storage, disposal or transport, or otherwise as soon as COMMUNICATION COMPANY becomes aware of the existence of any Hazardous Materials on the Property in violation of any applicable law or regulation. The obligations of this Paragraph 13 shall survive the expiration or other termination of this Agreement. 15. Damage to Water Tower or to the Pronertv. COMMUNICATION COMPANY'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 COMMUNICATION COMPANY, or those of its agents, representatives, employees, contractors, or subcontractors, cause such damage or interference, COMMUNICATION COMPANY will commence and diligently proceed to cure the damage or interference within thirty (30) days after receipt of written notice. If COMMUNICATION COMPANY 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 COMMUNICATION COMPANY. 16. Casualty. If any portion of the Property, Water Tower or Antennae is damaged by any casualty and such damage materially and adversely affects COMMUNICATION COMPANY's use of the Water Tower or Property, COMMUNICATION COMPANY may give thirty (30) days' notice of its intention to terminate this Agreement. Such notice must be given within fifteen (15) days of the casualty. If the Agreement is terminated under the provisions of this Paragraph, a pro rata portion of the annual rental shall be refunded to COMMUNICATIONS COMPANY for any portion of the year after the termination of this Agreement. 17. Ouiet Eniovment. COMMUNICATION COMPANY, upon paying the Fee(s), 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, the CITY agrees to obtain from the holder of such encumbrance an Agreement that COMMUNICATION 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 COMMUNICATION COMPANY from the Property. 18. Insurance: A. As long as this Agreement is in effect, COMMUNICATION COMPANY shall maintain a general liability insurance policy that provides coverage for the Property and the Water Tower from any damage to property or injuries to persons. Said insurance policy shall provide coverage on an occurrence basis in an amount no less than Two Million Dollars ($2,000,000), and shall include contractual liability coverage to provide coverage for the indemnification provision in Paragraph 14 of this Agreement. Said insurance policy shall list the 11 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 sixty (60) days prior written notice. COMMUNICATION COMPANY shall provide the CITY with a Certificate of Insurance for said policy naming the CITY as an additional insured. The insurance shall prove that it may not be cancelled without providing CITY with sixty (60) days written notice. Each year when COMMUNICATION COMPANY receives a renewal notice for the insurance it shall provide the CITY with a copy prior to the end of the preceding year's coverage. COMMUNICATION COMPANY shall also maintain fire and extended coverage insurance insuring COMMUNICATION COMPANY and CITY's personal property for its full insurable value (subject to reasonable deductibles). B. Notwithstanding anything in this Agreement to the contrary, each party releases the other party from all liability, whether for negligence or otherwise, in connection with a loss covered by any policies which the releasing party carries with respect to the Property, including the Antennae, Supplemental Equipment and Equipment Shelter, but only to the extent that such loss is covered 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. COMMUNICATIONS COMPANY shall annually provide CITY with proof of workers' compensation insurance covering all of COMMUNICATION COMPANY's employees and agents who access the Property. 19. Condition ofProoertv. COMMUNICATION COMPANY acknowledges and agrees that the CITY makes no representations or warranties regarding the suitability of the Property or the Water Tower for COMMUNICATION 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. 20. 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 of eminent domain, COMMUNICATION COMPANY shall not be entitled to any portion of the award paid for the taking and the CITY shall receive full amount of such award. COMMUNICATION COMPANY 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, COMMUNICATION 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 COMMUNICATION COMPANY on account of any and all damage to COMMUNICATION COMPANY's business and any costs or expenses incurred by COMMUNICA nON CaMP ANY 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 power shall be treated as a taking by condemnation. 12 21. 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. 22. Miscellaneous. A. Whole A{!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. Severabilitv. If any provision 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 provisions of this Agreement, which shall continue in full force and effect as if the offending provision never existed. C. Authoritv. Each party represents and warrants that it has full authority to enter into and to sign this Agreement. D. Countemarts. The parties may sign this Agreement in counterparts. E. Bindin{! 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 COMMUNICATION COMPANY. F. Assi{!nment and Dele{!ation. (a) Bv COMMUNICATION COMPANY. Except for COMMUNICATION COMPANY's affiliates or subsidiaries, COMMUNICATION 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 may not unreasonably withhold. For purposes of this Subparagraph, an "affiliate" means an entity that controls, is controlled by, or is under common control with COMMUNICATION COMPANY. Upon acceptance by the CITY of such assignment, transfer or sale, COMMUNICATION COMPANY will be relieved of all future performance, liabilities and obligations under this Agreement. (b) Bv the CITY. The CITY may freely assign its rights and delegate its duties under this 13 Agreement to a joint powers organization of which it is now a member or may become a member in the future. 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 4646 Dakota Street SE Prior Lake, MN 55372 ATTN: City Manager If to Communication Co: Clear Wireless LLC 4400 Carillon Point Kirkland, W A 98033 A TTN: Site Leasing With a Copy to: Clear Wireless LLC 4400 Carillon Point Kirkland, W A 98033 A TTN: Legal Department H. Estoppel 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. Governinll Law. This Agreement shall be construed in accordance with the laws of the State of Minnesota. J. Broker. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker, and shall hold the other party harmless from any claims for commission by such broker. K. Memorandum of Allreement. CITY agrees to cooperate with COMMUNICATION COMP ANY III executing reasonable documents (including a Memorandum of Lease) necessary to protect COMMUNICATION COMPANY's rights hereunder or COMMUNICATION COMPANY's use of the Water Tower, Property, and Supplemental Equipment or Equipment Shelter. L. Headim!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. ]4 IN WITNESS HEREOF, the parties have executed this Agreement as of the date first above written. For Form and Execution CITY OF PRIOR LAKE By Suesan Lea Pace Its City Attorney By Mike Myser Its City Mayor By Frank Boyles, Its City Manager COMMUNICATION COMPANY By: Its: By: Its: 15 STATE OF MINNESOTA) )ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this day of 2010. by Mike Myser 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 ) )ss. ) COUNTY OF The foregoing instrument was acknowledged before me this 2010. by and the and day of . a of corporation, on behalf of the corporation. Notary Public DRAFTED BY: HALLELAND, LEWIS, NILAN, SIPKINS & JOHNSON 600 Pillsbury Center South 220 South Sixth Street Minneapolis, MN 55402-4501 16 EXHIBIT A to WATER TOWER ANTENNAE AGREEMENT (Legal Description) Pursuant to that certain Water Tower Antennae Agreement dated . between the City of Prior Lake as Lessor and Clear Wireless LLC 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: That part of the East Half the Southeast Quarter of Section 2, Township 114, Range 22, Scott County, Minnesota described as follows: Beginning at a point on the East line of said West Half of the Southeast Quarter distant 440 feet Northerly of the Southeast comer thereof; thence Westerly parallel to the South line of said West Half of the Southeast Quarter a distance of 180 feet; thence Northerly parallel to said East line a distance of 240 feet; thence Easterly parallel to said South line a distance of 180 feet to said East line of the West Half of the Southeast Quarter; thence Southerly along said East line to the point of beginning. and commonly known as 4741 Tower Street SE, Prior Lake, MN 55372. 17 EXHIBIT B to WATER TOWER ANTENNAE AGREEMENT (Site Plan) 18 EXHIBIT C to WATER TOWER ANTENNAE 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. COMMUNICATION COMPANY's technical reports must establish to its exclusive satisfaction that the property is capable of being suitably engineered to accomplish COMMUNICATION COMPANY's intended use of the Property. 19 EXHIBIT D to WATER TOWER ANTENNAE AGREEMENT (Equipment Shelter) Quantity: Description: Structure: Structural Steel Skid. Floor. Walls. Ceilinll. Roof. Exterior. 20