HomeMy WebLinkAbout5G - Site Lease Agreement with Telecom Transport Management Inc.
MEETING DATE:
AGENDA #:
PREPARED BY:
PRESENTER:
AGENDA ITEM:
DISCUSSION:
4646 Dakota Street SE
Prior Lake, MN 55372
CITY COUNCIL AGENDA REPORT
AUGUST 16, 2010
5G
JERIL YN ERICKSON, FINANCE DIRECTOR
JERIL YN ERICKSON, FINANCE DIRECTOR
CONSIDER APPROVAL OF A RESOLUTION AUTHORIZING THE
MAYOR AND CITY MANAGER TO ENTER INTO A COMMUNICATION
SITE LEASE AGREEMENT WITH TELECOM TRANSPORT
MANAGEMENT INC (TTM).
Introduction
The purpose of this agenda item is to consider entering into a
Communication Site Lease Agreement with Telecom Transport
Management Inc (TTM). TTM has requested that they be allowed to install,
maintain and operate "ground equipment" on the Tower Street water tower
property.
Historv
The City currently has the following Antennae Agreements in place:
Site Lessee Agreement
Date
4741 Tower Street Clear Wireless 2010
(Tower Street Water Tower)
I I CinQular / AT&T I 2006
I I Sprint I 2000
I 1 T -Mobile I 1999
I I Verizon I 1991
5560 Cedarwood Street Clear Wireless 2010
(Crest Avenue Water Tower)
I I CinQular / AT&T I 2002
I I Sprint I 1997
I 1 T -Mobile I 2000
I I Verizon I 1997
3600 - 170th Street SE T -Mobile 2008
(Willows Park Power Pole)
14998 Wilds Parkway Verizon 2005
(Civil Defense Tower)
Current Circumstances
TTM would like to place Ground Equipment on the Tower Street Water
Tower property in the City of Prior Lake. TTM's technology at this site is
providing fiber connections only to the existing carriers at the water tower.
The fiber provides the carriers additional phone lines that are hard wired
directly into the carriers Telco equipment on the ground and is connected to
TTM's fiber network already in place in the ground that transport the
R:\Council\201o Agenda Reports\08 16 10\Telecom Transport Management - Communication Site Lease Agreement - Tower Street - Agenda.doc
information through fiber all the way back to the carriers switch. The
fiber can be compared to the copper T-1 phone lines the carriers are
presently using to send calls back to the carrier's switch for processing.
However, the fiber technology TIM provides is much faster and has greater
capacity than the existing copper T-1 lines that are currently transporting
this information The fiber technology TTM is providing to the carriers will
never require TTM to install antennas on the water tower.
The City Attorney and Staff prepared a new version of the Standardized
Water Tower Antennae Agreement that deals with communication providers
who, like TTM, do not need to place antenna on the water tower. This new
agreement will be referred to as the Standardized Communication Site
Lease Agreement. TTM was provided with a Lease Agreement which they
have executed. A copy of the partially executed Agreement is included with
this agenda report.
The Agreements have an initial term from the effective date through
December 31, 2010. The initial term of the Agreements will automatically
extend for four (4) additional five (5) year terms subject to provisions in the
Agreement.
Site drawings submitted by TTM have been reviewed and approved by
Staff.
ISSUES:
The Agreement used is the City's new Standardized Communication Site
Lease Agreement.
FINANCIAL
IMPACT:
The Site Agreement has an annual fee for 2010 of $4,800.00 which will be
prorated for the initial term of the Agreement. Thereafter, the annual fee
shall increase each January 1 by the previous year's annual fee plus five
percent (5%).
An additional one-time non-refundable fee of $7,500 will apply for
installation of the Ground Equipment.
The revenues generated from this Communication Site Agreement will be
recorded in the General Fund.
TTM will also be required to obtain the necessary building permits.
ALTERNATIVES: The following alternatives are available to the City Council:
1. Adopt a Resolution Authorizing the Mayor and City Manager to
enter into a Standardized Communication Site Lease Agreement
with Telecom Transport Management Inc.
2. Table this item for a specific reason.
RECOMMENDED1 Alternative 1.
MOTION:
rtJew b.
I
-
, c~ Manager
Agenda Reports\08 16 10\Telecom Transport Management - Communication Site Lease Agreement - Tower Street - Agenda.doc 2
4646 Dakota Street SE
Prior Lake. MN 55372
RESOLUTION 10-xxx
A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE THE CITY'S
STANDARDIZED COMMUNICATION SITE LEASE AGREEMENT WITH TELECOM TRANSPORT
MANAGEMENT INC FOR THE TOWER STREET WATER TOWER PROPERTY
Motion By:
Second By:
WHEREAS, Various cellular companies have located their antennae on City water towers; and
WHEREAS, The public safety, health and welfare is served when cell phone coverage is uniform
and unbroken; and
WHEREAS, Telecom Transport Management Inc desires to install ground equipment on the City's
Tower Street Water Tower property which would enhance the capacity for existing
cellular companies; and
WHEREAS, The City Attorney and City Staff have developed a "Standardized Communication Site
Lease Agreement" to use in those situations where the communications company is
not seeking to place antenna on a City water tower; and
WHEREAS, Telecom Transport Management Inc 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 City Council hereby approves the "Standardized Communication Site Lease Agreement"
prepared by the City Attorney and City Staff and directs Staff to use said agreement in similar
situations in the future.
3. The Mayor and City Manager are hereby authorized to execute the Standardized Communication
Site Lease Agreement on behalf of the City.
PASSED AND ADOPTED THIS 16th DAY OF AUGUST, 2010.
YES
NO
I Myser
I Erickson
I Hedberg
I Keeney
1 Millar
Myser
Erickson
Hedberg
Keeney
Millar
Frank Boyles, City Manager
STANDARD COMMUNICATION SITE LEASE 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 TTM OPERATING
CORPORA nON, INC., a Nevada Corporation (hereinafter referred to as
("COMMUNICATION COMPAN.Y},1.col.J.~tjVl'!!Y "PARTIES"t
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 and incorporated
herein (hereinafter referred to as the "Property") which may be subject to existing easements.
B. COMMUNICATION COMPANY desires to install, operate and maintain a
devisees) or equipment (collectively "Devises") and "Ground Equipment" used for the
transmission and reception of radio communication signals in such frequencies as may be
assigned by the Federal Communication Commission.
C. The Devises and Ground Equipment will be located on the Property at the
approximate location depicted in the Site Plan which is labeled as Exhibit B, attached hereto and
incorporated by reference herein.
D. The Parties desire to enter into this Agreement relating to the use of the Property
for communication purposes.
AGREEMENT
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 and any Exhibits referenced therein are
incorporated by reference herein and made part of this Agreement as if fully set out
herein.
2. Authorization to Use CITY Pronertv at Water Tower Location.. 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
govermnent-related communication systems for the City of Prior Lake and other
governmental units for comnllmication and safety purposes. Subject to the terms of this
Agreement, the CITY grants COMMUNICATION COMPANY's non-exclusive use of a
certain portion of the Property, which is legally described in Exhibit A and depicted on
Exhibit B, ("Site Plan") subject to any and all existing easements and restrictions not
inconsistent with the rights granted hereunder for the purposes described in Paragraph 5
of this Agreement, including the installation, operation, maintenance and the storage of
communication equipment.
3.0 Term. This Agreement provides for an Initial Tenn and four (4) Renewal Tenns. The
length of a Renewal Term is five (5) years.
3.1 Jnitial Term. The Initial Term of this Agreement shall commence on the date this
Agreement is authorized by the CITY Council, referred to herein as the "Effective Date"
and end on December 31 sl of the same year.
3.2 Renewal Terms. In addition to the Initial Term, this Agreement may be renewed four
(4) times, subject to the provisions in Paragraph 5, unless COMMUNICATION
COMPANY gives CITY written notice at least sixty (60) days prior to the expiration of
the then-existing term that COMMUNICATION COMPANY is terminating this
Agreement. A renewal term is five (5) years.
4. Fee and Comnensation
A. Initial and Renewal Tenns. COMMUNICATION COMPANY agrees to pay
CITY an annual fee as provided for herein. The annual fee for the Initial Tenn shall be Four
Thousand Eight Hundred and 00/100 Dollars ($4800.00). Thereafter, the annual renewal fee
shall increase each January 1, beginning on January 1, 2011, by the amount of the previous
year's annual renewal fee plus five percent (5%). The annual fee shall be paid by
COMMUNICATION COMPANY in one payment that must be received by the CITY prior to
January 151 of each year.
B. Initial Term Fee Pro-Rated. The fee for the Initial Tenn shall be pro-rated from
the date the CITY Council authorizes this Agreement (the "Effective Date") through December
31 sl of that year. The Initial Term fee shall be paid to CITY in full within ten (10) business days
from the date the resolution authorizing this Agreement is passed.
C. Taxes. In addition to the annual renewal fee, COMMUNICATION COMPANY
agrees to timely pay it's 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 amolmt of space occupied or used by other COMMUNICATION COMPANIES or
users, other than the CITY or another governmental entity.
D. Ground Equioment and Equipment Shelter Fee., Subparagraphs (a) and (b) below
require COMMUNICATION COMPANY to pay a one-time fee to the CITY to compensate for
the installation of a "Ground Equipment" or an "Equipment Shelter." For the purpose of this
Agreement COMMUNICATION COMPANY has represented to CITY that it only requires
"Ground Equipment" to provide its service to communication companies. COMMUNICATION
COMPANY shall be responsible for obtaining all necessary federal, state and local permits. In
the event COMMUNICATION COMPANY later determines it requires an "Equipment Shelter,"
COMMUNICA TION COMPANY shall pay CITY the difference between the one-time fee for
GrOlmd Equipment and the one-time fee for an Equipment Shelter.
(a) "Ground Eauipment." Ground Equipment is any structure used to house
equipment and devises ("Devises") positioned on the Property, which
augment the transmission of a client communication company's signal.
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In addition to the Initial and Renewal Pee(s) and payments provided for
herein, COMMUNICA TION COMPANY agrees to pay CITY a one-time
non-refundable fee of Seven Thousand Five Hundred and 00/1 00 Dollars
($7500.00) as compensation for COMMUNICATION COMPANY's use
of the Property to install its "Ground Equipment."
(b) "Eauiument Shelters." An Equipment Shelter differs from Ground
Equipment in that the building is, generally, used directly by a
communication company to store and house equipment necessary for
communication company to provide telecommunication signals to an end
user. An Equipment Shelter is usually bigger than Grolmd Equipment.
In addition to the Initial and Renewal Term fees, COMMUNICATION
COMPANY shall pay City a one-time non-refimdable fee of Twelve
Thousand Five Hundred and 00/100 Dollars ($12,500.00) as compensation
for COMMUNICATION COMPANY's use of a portion of the Property
for a structure ("Equipment Shelter") for the storage of equipment.
The CO:M:MUNICATION COMPANY shall submit its construction plan
and a building permit application, if necessary. The construction plan and
building permit are subject to review and approval by the City prior to
constructi on.
COMMUNICATION COMPANY shall provide for and be responsible for
all utility services used by COMMUNICATION COMPANY.
COMMUNICATION COMPANY shall be responsible for the
maintenance of the "Equipment Shelter."
5. Use.
A. COMMUNICATION COMPANY'S right to use the Property 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 solely for the purpose
of constructing, installing, removing, replacing, maintaining, and operating Ground Equipment,
subject to such modifications and alterations as may result from changes or improvements in
technology. If a modification or alteration to the Ground Shelter shown in Exhibit B results in an
increase in the size ofthe Ground Equipment by more than twenty-five percent (25%), the CITY
may at its sole discretion reclassify COMMUNICATION COMPANY'S structure from Ground
Equipment to Equipment Shelter, notwithstanding the definitions provided in Paragraph 4 (a)
and (b). In the event the facility on the Property is reclassified the COMMUNICATION
COMPANY shall pay CITY the difference between the one-time Ground Equipment fee and the
one-time Equipment Shelter fee. If the Ground Equipment is increased by more than twenty-five
percent (25%), COMMUNICATION COMPANY AND CITY shall negotiate the annual fee
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going forward. The City shall have the right, at its discretion, to approve the manner of
installation and the location on the Property where COMMUNICATION COMPANY installs the
Ground Equipment or Equipment Shelter, which approval shall not be unreasonably withheld or
delayed.
C. COMMUNICATION COMPANY shall store all Devises related to its operations
(augmenting or boosting signals it receives from or transmits to, or other ground equipment) in
its "Ground Equipment."
D. CITY will not in any way be responsible for the Ground Equipment and Devises,
or any personal property actually placed on the Property or in the Ground Equipment installed by
COMMUNICATION COMPANY.
E. The Devises and Ground 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, subject to the CITY's right to
limit access to the Property in cases of emergency or at times when the CITY is conducting
repairs or maintenance on the Water Tower or to the Property. The CITY shall use reasonable
efforts to minimize the dismption of COMMUNICATION COMPANY's access to the Property,
in responding to any such emergencies and performing such maintenance and repairs. The CITY
will be entitled to reimbursement from COMMUNICATION COMPANY ifthe CITY incurs any
costs associated with providing COMMUNICATION COMPANY access to the, Property,
except in those cases where the cost is incidental to the City obtaining access for its own
purposes. 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. The CITY shall not
be responsible for damages or otherwise for interruption in COMMUNICA TION COMPANY
services if the interruption is due to an emergency or the performance of maintenance and repairs
on the Property or to the Water Tower. If COMMUNICATION COMPANY requires access it
shall provide CITY with forty-eight (48) hours notice, unless an emergency exists.
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
COMP ANY's use of the Property and to specifically indemnify the CITY from such liens.
H. COMMUNICATION COMPANY shall pay all personal and real property taxes
assessed against the Ground Equipment and/or Devises. If any such improvements constructed
on the Property should cause all or a portion of the Property to be taxed for real estate purposes,
it shall be the liability of COMMUNICATION COMPANY to pay its pro-rata share such
property taxes.
J. Any access easements rented to COMMUNICATION COMPANY shall
terminate upon termination of this Agreement and COMMUNICATION COJ\.1P ANY agrees to
execute any and all documents necessary to remove the easement from the Property,
6. Maintenance of Ground Eauinment: Modification.. COMMUNICA TION COMPANY
shall maintain the Ground Equipment in good condition at all times, at its sole cost and expense.
COMMUNICATION COMPANY shall conduct all repair, replacement and maintenance
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operations in accordance with applicable OSHA regulations or such other occupational and
safety regulations pertaining to such operations.
7. Utilities. COMMUNICATION COMPANY shall separately meter and pay all electric
and other utility services that are associated with the use of the Property and the Ground
Equipment. The CITY agrees to cooperate with COMMUNICATION COMPANY in its efforts
to connect the Ground Equipment and Devises 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 Ground Equipment and Devises. The CITY makes no
representation or warranty regarding the availability of electric or other utility service to the
Property. COMMUNICATION COMPANY shall have the right to install utilities, at
COMMUNICATION COMPANY's expense, and to improve the present utilities on the
Property. Companies that are using "Ground 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, Ground Equipment or Devises.
8. Removal of Ground Eauioment and Devises.,
A. COMMUNICA TION COMPANY shall remove the Ground Equipment, Devises
and all personal and real property and trade fixtures at its own cost and expense upon the
expiration of the tenn of this Agreement, or any earlier termination of this Agreement as
provided for herein, or any Renewal Ternl. COMMUNICATION COMPANY shall, at its sole
cost and expense, return 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 the Ground Equipment and Devises from the Property or fails to restore the
Property to its original condition within ninety (90) days of the termination of this Agreement,
the CITY shall have the right to remove COMMUNICATION COMPANY'S GrOlmd
Equipment and Devises 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 to its original condition.
B. Upon the termination of this Agreement, without regard to the cause for such
termination, all right, title and interest in the Ground Equipment shall remain vested with the
COMMUNICATION COMPANY.
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9. Termination.
A. Except as otherwise provided herein, this Agreement may be terminated by either
party only as follows:
(a) By either party after providing written notice to the other party that a
default of a covenant or term of the Agreement 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 as provided for herein 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;
(b) By COMMUNICATION COMPANY for cause, upon sixty (60) days
written notice, 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 Ground Equipment and Devises as a
transmission facility:
(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 related Equipment;
(d) By the CITY if COMMUNICATION COMPANY fails to tender the
annual rental payment within thirty (30) days from the date the Notice was
mailed from the CITY;
(e) 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 Property for Water Tower 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 tenninates this Agreement other than as of right as provided in this
Agreement, or CITY causes interruption of the business of
COMMUNICA TION COMPANY or for any other CITY breach of this
Agreement, the CITY's liability for damages to the extent appropriate to
COMMUNICATION COMPANY shall be limited to the actual and direct costs
of Equipment removal 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
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limited by the liability protections set out in Minnesota Statute Chapter 466, as
it may be amended from time to time.
10. Non-Exclusive Use. Upon paying the fees required herein, COMMUNICATION
COMPANY shall have the right to the non-exclusive use of the Property as pennitted 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.
11. Interference Caused bv COMMUNICATION COMPANY'S Eouinmen~.
COMMUNICA TION COMPANY agrees that the following priorities of use shall apply in
descending order in the event commtmication 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;
ii. Public Safety Agencies; including law enforcement, fire and ambulance
services, that are not part of the CITY; and
iii. Other governmental agencies where use is not related to public safety
12. Interference with ODerations.
A. Temoorarv Interruotions of Service_ If the CITY determines that continued
- - -
operation of the COMMUNICATION COMPANY'S equipment 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
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 sha11 not be
liable to COMMUNICATION COMPANY or any other party for any interruption in
COMMUNICATION COMPANY's service or interference with COMMUNICATION
COMPANY's operation. 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.
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.
C. With HilIher Priority Users. If COMMUNICATION COMPANY's equipment
causes impermissible interference with the parties identified in Paragraph 10 above or with
preexisting tenants that have installed antennae on the Water Tower, 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 equipment
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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 Occu!"ants. 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 ten (10) days, the radio frequencies currently in operation or to be operated in the future
of each transmitter and receiver installed and operated from the Property. CITY may require a
new commercial applicant to retain an independent registered professional engineer, acceptable
to the CITY, to perfonn an 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.
13. Future Develonment. 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.
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 ofthe CITY. COMMUNICATION
COMPANY shall defend all claims arising out of the installation, operation, use, maintenance,
repair, removal, or presence of COMMUNICATION COMPANY's Ground Equipment and
Devises on the Property. CITY covenants and agrees with COMMUNICATION COMPANY
that upon payment of the Rent and observing and performing all the terms, covenants and
conditions on COMMUNICATION COMPANY's part to be observed and performed,
COMMUNICATION COMPANY may peacefully and quietly enjoy the Premises.
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 COMPANY may be liable in the
performance of this Agreement, except those which arise solely from the negligence, willful
misconduct, or other fault of the COMMUNICA nONS CaMP ANY.
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
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dangerous in any applicable federal, state or local law or regulation. Without limiting the scope
of Subparagraph 14(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 Ground Equipment, Devises and/or Property and
activities conducted by the party thereon, unless the enviromnental 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 Warranty Regarding: Hazardous Materials or
Waste. COMMUNICATION COMPANY represents and warrants that its use of the Property,
GrOlmd Equipment or Devises 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 Property, in violation of any applicable law or regulations pertaining to Hazardous
Materials, lUlless 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 14 shall survive the expiration or other termination of this Agreement.
15. Damasre to Water Tower or to the Prooertv. COMMUNICATION COMPANY's
installation, operation, maintenance, modification, and removal of the Ground Equipment and
Devises 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 ofCOMMl.JNICATION
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 fifteen (15) 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 aud expense of COMMUNICATION COMPANY.
In the event of an emergency situation, where it is cmcial for the repairs to be corrected as
quickly as possible, the CITY, without notice to the COMMUNICATION COMPANY, may
begin corrective action. Once COMMUNICATION COMPANY is capable of assuming
responsibility for completing the repairs to the Property, CITY may hand over responsibility for
completing the repairs to the COMMUNICATION COMPANY. The CITY shall provide
COMMUNICATION COMPANY with an invoice for any fees or expenses incurred by CITY to
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address the emergency situation. If COMMUNICATION COMPANY fails to reimburse CITY
for the expenses incurred the CITY may elect to (1) require COMMUNICATION COMPANY
to provide CITY with an Irrevocable Letter of Credit, in an amount detennined by the CITY
Engineer as a condition of CITY allowing COMMUNICATION COMPANY'S Ground
Equipment and Devises to remain on CITY property; (2) increase COMMUNICATION
COMPANY'S annual fee by an additional five (5) percent per year; (3) terminate this
Agreement or (4) take any other action available to the CITY in law or equity to recover the
amount the CITY expended. The election of one remedy does not waive the CITY's right to
pursue other remedies available to it.
16. Casualty. If any portion of the Property is damaged by any casualty and such damage
materially and adversely affects COMMUNICATION COMPANY'S use of the Property,
COMMUNICATION COMPANY may terminate this Agreement by providing CITY with thirty
(30) days written 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 Fee shall be refunded to COMMUNICATION
COMPANY for the remaining portion of the year.
17. 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 Ground
Equipment and Devises 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 One Million
Dollars ($1,000,000) with an wnbrella policy of Five Million Dollars ($5,000,000), 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 City as an additional insured
party. Said policy shall contain a clause that provides that the insurer will not cancel, non-renew,
or materially change the policy without first giving the City thirty (30) days prior written notice.
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 thirty (30) days written notice. Each year when
COMMUNICA nON 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 al11iability, 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 GrOlmdEquipment, but only to the extent that such loss is covered under the insurance
policy(s). Any policy required to be obtained pursuant to this Agreement 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.
10
17. Condition of Pronertv. COMMUNICATION COMPANY acknowledges and agrees
that the CITY makes no representations or warranties regarding the suitability of the Property 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.
18. 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,
COMMUNICA TION COMPANY shall not be entitled to any portion of the award paid for the
taking and the CITY shall receive full aIrtOlUlt 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 Ground Equipment, Devises 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 e~ercise of the power shall be treated as a taking by
condemnation.
19. 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 herelUlder.
20. 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.
B. Severability. If any provision of this Agreement is found to be unenforceable or
invalid by a court of competent jurisdiction, such wlenforceability or invalidity shall not affect
11
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. Counternarts. The Parties may sign this Agreement in counterparts.
E. Bindine: Effect. The tenns, 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. Assig:mnent and DelelZation.
(a) Bv COMMUNICATION COMPANY. Except for COMMUNICATION
COMPANY's affiliates or subsidiaries or to any successor-in-interest or
entity acquiring fifty-one percent (51%) or more of its stock or assets,
subject to any financing entity's interest, if any, 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
(b) Bv the CITY. The CITY may freely assign its rights and delegate its
duties under this Agreement to a joint powers organization.
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
Ifto Communication Co:
Telecom Transport Management, Inc.
146 N. Canal Street
Suite 210
Seattle, WA 98103
Attn: Bill Buck
12
With a Copy to:
Telecom Transport Management, Inc.
146 N. Canal Street
Suite 210
Seattle, WA 98103
Attn: Lease Administrator
H. EstnlJoel 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. .oovernilll! 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. Headim!s. Headings at the begilming of paragraphs herein are for convenience of
reference, shall not be considered part of this Agreement and shall not influence its construction.
13
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
TTM OPERATING CORPORATION, INC.
~~/~
By:' FR~~TTISTA
Its: SENIOR VICE PRESIDENT
By:
Its:
14
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.
STATE OF VJ~~:~)
)ss.
COUNTY OF Ih\Vf )
Notary Public
The foregoing iqstrument was aclmowledged before me this '1. day of ~Cf V&f' .
2010. ~'( ~ 1V\..c;.~~~'1+-- and -- ,- .
The SJ'.. V. ((. ~~ - - and '-- , of :rSJecD~ 1"Y""'S~v.r
M~~ <,~.~; a ~-< 'Neva~fJ n: __ __ corporation, on behalf of the corporation.
~~
Notary Public
. State .of W.lhlnotG,ll
AMANOA L CHATTERTON
Mr Appola..EllpJ.... Jln 11.2014
.;
DRAFTED BY:
HALLELAND, LEWIS, NILAN, SIPKINS & JOHNSON
600 Pillsbury Center South
220 South Sixth Street
Minneapolis, MN 55402-4501
]5
Notary Public
EXHIBIT A
To
COMMUNICA TION SITE LEASE AGREEMENT
(Legal Description)
Pursuant to that certain Ground Equipment Agreement dated . between the
City of Prior Lake as Lessor and TTM Operating Corporation, Inc. 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
COlmty, 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 corner 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.
16
EXHIBIT B
To
COMMUNICA nON SITE LEASE AGREEMENT
(Site Plan)
17
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.TTM
MSP-TWR
VERIZON WIRELESS SITE NAME:
MINe PRIOR LAKE
4741.ToWER STREET SOUTHEAST
PRIOR lAKE, MN 55312
DRIVING DIRECTIONS
FRCIt11C~~
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GENERAL NOTES
AREA MAP
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APPROVAlS
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CONlRAl:11lR 'TO '<BlF'i iHE LlICAmN
OF N.L PUBUC AN) PIlII\IlE UG
UIIUIIES PRIOR 'TO CONS11lUClTOII SWlf
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MSP-TWR
VlY'/ SITE NAME:
MINe PRIOR LAKE
4741 TOWE:RSTREErSE
PRIOA lAKE. MN 50312
SHEET CONTENTS:
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VlW SITE NAME:
MINCPRlOR lAKE
4741 TOWEIlSTREEfSI:'
PRIOR LAKE. 'AN 55372
SHEET CONTENTS:
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EXHIBIT C
To
COMMUNICA nON SITE LEASE AGREEMENT
(Conditions Precedent)
1. All permits from all local or federal land use jurisdictions for the intended use.
2. FCC authorization to utilize this location for the intended use.
3. 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.
18
Quantity:
Description:
Stmcture:
EXHIBIT D
To
COMMUNICA nON SITE LEASE AGREEMENT
(Ground Equipment andlor Equipment Shelter)
See Attached.
19
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