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HomeMy WebLinkAbout8A - Water Tower Antennae AGENDA #: PREPARED BY: SUBJECT: DATE: INTRODUCTION: BACKGROUND: SA RALPH TESCHNER, FINANCE DIRECTOR CONSIDER APPROVAL OF RESOLUTION 96-106 ADOPTING STANDARDIZED WATER TOWER ANTENNAE AGREEMENT NOVEMBER 4, 1996 The telecommunications industry is growing rapidly, particularly with new licenses recently issued by the FCC for PCS (Personal Communication Systems). These companies are looking for places to install the antennae equipment necessary to provide the services they offer, and are approaching cities in an effort to lease space on existing water towers. Prior Lake presently has two such agreements with telecommunication companies. In some instances, if a water tower is not available or located within the system grid, a company may need to erect a structure for the antenna. The use of such space on water towers has generated an additional revenue stream for cities like Prior Lake. This trend is expected to continue and expand. The purpose for this agenda item is for the City Council to consider the use of a standard Water Tower Antennae Agreement that could be used for all companies that request permission to place antennae for communication systems located on our water towers in the City of Prior Lake. If the Council approves the standardized agreement, the application process would include submission of a site, landscape and tower antennae configuration plans which would be reviewed by the Public Works Department to insure that the proposed antennae and or equipment shelters will not interfere with our municipal water operations and are consistent with city zoning and subdivision requirements. A building permit would then be required along with payment of related permit fees. The City's initial water tower lease agreements were negotiated between Cellular One and US WEST NewVector Group in December of 1990 and January of 1991 respectively and approved by the City Council for five years each with options to renew. US West mounted its antennas on the water tower located in Prior South and Cellular One affixed their antenna's on the water tower located at the intersection of Crest Avenue and CSAH 42. Both lease agreements are scheduled to expire on December 31, 1996. We have been advised that the companies will automatically extend the leases for an additional five (5) year renewal term. H:\AGENDA\A9613.DOC 16200 Eagle Creek Ave. S.E., Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER DISCUSSION: Cellular One is now known as ATT Wireless and US West's cellular service is now called AirTouch Cellular. Both wish to extend their existing lease agreements. In addition, US West has requested an agreement with the City to install antenna on a second water tower. Nextel Communications Inc. and US Sprint have also expressed interest in utilizing the City's water towers plus Staff has received feelers from other communication companies that have indicated similar interests. Therefore Staff contacted our City Attorney to review our existing lease and update the provisions in order to create a standard Water Tower Antennae Agreement for all communication companies. During negotiations with the telecommunication companies it is expected there may be some minor modifications depending upon the particular situation but basically we want a standardized agreement. Suesan Pace has had significant experience in putting these lease agreements together and has drafted the proposed document (standard city agreement) for your consideration. Presently our current lease agreement provides for an annual payment of $9,775.00 with a cost of living escalator adjustment which will be applied to the renewed leases. The proposed new water tower lease agreement calls for yearly rent of $13,000 to be adjusted each year of the five year agreement by 15%. Under section 3 entitled Rent and Compensation, there is also an additional one time payment of $12,500.00 required of communication companies if they wish to use the water tower site to erect an equipment shelter. The shelter is for the exclusive use of the communication company during the life of the agreement. However, the City can either exercise an option to take ownership of the shelter at the end of the lease period or require the company to remove the structure upon termination of the agreement. Other significant provisions of the agreement are requirements such as color matching of the antenna with the water tower, building material simulating the appearance of brick, and periodic inspections of the water tower and antennas as an assurance that the condition of the water tower is not adversely affected. The remainder of the agreement is fairly typical of such lease agreements with respect to liability, insurance, termination clauses, etc. Staff believes that the utilization of a standard agreement represents a fair approach and manner in dealing with all the various communication companies. It provides for an equitable basis of compensation as well as a significant time savings as opposed to individual negotiations. The standard water tower agreement will allow a company to place up to a maximum of twelve (12) antennas on a water tower. Additional antennas will require an amendment to H:\AGENDA\A9613.DOC the agreement and a fee adjustment pro-rated according to the additional number of antennas. The federal telecommunications act requires that Cities reasonably accommodate communication companies and make available the use of their water towers for antennae installation purposes. Under this premise Staff will be reviewing how many such antennae installations may occur and if there should be a maximum limitation. The City Council may want to consider, once it approves the "standard" agreement to further authorize the City Manager and Mayor to enter into similar agreements with other companies based upon the same terms and conditions, without the necessity of bringing each agreement to the Council for authorization. ALTERNATIVES: 1. Adopt a motion and second approving Resolution 96-106 Adopting Standardized Water Tower Antennae Agreement as submitted. 2. Amend the terms of the standard Water Tower Antennae Agreement as determined by the City Council. 3. Take no action at this time and direct the staff to provide additional information. FINANCIAL IMPACT: Currently we have $37,000 programmed into our revenue projections for the proposed 1997 General Fund Operating Budget that is presently based upon $1,200 from the school district, renewal of the existing agreements from A IT Wireless, and US WEST and the anticipation of at least one agreement at the new rates. Substantial additional revenue could be generated depending upon the number of lease agreements executed in the upcoming months. RECOMMENDATION: Alternative 1. Staff has reviewed the standard Water Tower Antennae Agreement and would recommend its adoption. ACTION REQUIRED: Motion and a second to approve Resolution 96-106 Adopting Standardized Water Tower Antennae Agreement as a standard agreement for future lease negotiations with communication compaq.tes. I I " IL Approved by: H:\AGENDA\A9613.DOC RESOLUTION 96-106 RESOLUTION ADOPTING STANDARDIZED WATER TOWER ANTENNAE AGREEMENT MOTION BY: SECOND BY: WHEREAS, the wireless communications industry is growing rapidly and has a need for sites to install communications antennae and equipment; and WHEREAS, wireless communications companies in many instances install antennae and related equipment on city water towers; and WHEREAS, the city believes it is in the city's best interest to have a standard form of a Water Tower Antenna agreement applicable to all wireless communications companies; and WHEREAS, a standard Water Tower Antenna Agreement is administratively efficient. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, that: 1. The City Council adopts the agreement attached hereto as its standard Water Tower Antenna Agreement. 2. The standardized Water Tower Antenna Agreement will apply to all wireless communications companies that use a City Water Tower for the transmission or reception of wireless communications. 3. The City Manager is authorized, without further action by the City Council, to enter into Water Tower Antenna Agreements with wireless communications companies so long as the terms and conditions of the Agreement are materially similar to those set forth in the attached Agreement. 4. Any Water Tower Antenna Agreement which is not materially similar to the standard agreement or any changes to the standard agree~ent must be authorized by the City Council. Passed and adopted this 4th day of November, 1996. YES NO Andren Greenfield Kedrowski Mader Schenck Andren Greenfield Kedrowski Mader Schenck { Seal} City Manager City of Prior Lake RES96 I 06. DOC 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER WATER TOWER ANTENNAE AGREEMENT THIS AGREEMENT is made and entered into this _ day of , 1996, by and between the CITY OF PRIOR LAKE, MINNESOTA, a Minnesota municipal corporation (hereinafter referred to as the "City"), and a corporation (hereinafter referred to as "COMMUNICATIONS COMPANY"). RECITALS A. The City is the fee owner of certain land located in Scott County, Minnesota legally described on Exhibit A attached hereto (hereinafter referred to as the "Property"). B. Located on the Property is a municipal water tower owned, operated and maintained by the City (hereinafter referred to as the "Water Tower"). C. COMMUNICATIONS COMPANY desires to install, operate and maintain a single facility, consisting of a total of twelve (12) antennae, used for the transmission and reception of radio communication signals in such frequencies as may be assigned by the Federal Communication Commission (hereinafter referred to as the "Antennae"), and to provide for the storage of related equipment (hereinafter referred to as the "Equipment") in accordance with the rermsoftlrisAgreemem. D. Tower. The parties desire to enter into this Agreement relating to the use of the Water 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. Authorization to Use Water Tower Space. The primary purpose of the City's ownership of the Property is to: (a) operate and maintain a municipal water tower so as to provide water service to residents of Prior Lake; and (b) to provide governmentally related communication systems for the City of Prior Lake. Subject to the terms of tlris Agreement, the City authorizes COMMUNICATIONS COMPANY's non-exclusive use of a certain portion of the Property, which is legally described on Exhibit A attached hereto, subject to any and all existing easements and restrictions not inconsistent with the rights granted hereunder for the purposes described in Paragraph 4 of tlris Agreement, including the installation, operation, and maintenance of the Antennae and the storage of the Equipment. The location on the Water Tower where COMMUNICATIONS COMPANY is authorized to install the Antennae and the location of the Equipment Shelter ("Site Plan") on the Property are depicted on Exhibit B attached hereto. 2. Term. The term of this Agreement shall begin on January 1, 1997, subject to satisfaction of the conditions described in Exhibit C, and end at midnight on December 31, 200 1 ("Initial Term"). COMMUNICATIONS COMPANY shall have the right to extend the Initial 43517 1 term of this Agreement for three (3) additional five (5) year terms ("Renewal Term"), subject to the provisions of paragraph 5, and provided that it gives City written notice of its intention to extend at least sixty (60) days prior to the expiration of the then-existing term. 3. Rent and Compensation. A. Initial and Renewal Term. Beginning on December 31, 199 _ and on each December 31st during the Initial Term, rent shall be paid, in one payment, by COMMUNICATIONS COMPANY to the City in the annual amount of $ Thereafter, the annual rent for each Renewal Term shall increase by fifteen percent (15 % ). B. SupplementarY Equipment. On the Commencement Date of the Lease, COMMUNICATIONS COMPANY agrees to provide the City the following supplementary equipment, all of which are at the cost and expense of COMMUNICATIONS COMPANY: a) Three (3) Ultra portable telephones. b) Three (3) additional batteries. c) Three (3) 12 volt adapters. At the commencement date of each renewal term, COMMUNICATIONS COMPANY shall replace, at COMMUNICATIONS COMPANY's sole cost, the above described cellular equipment with three (3) similar and cost effective telephones of comparable value. C. Equipment Shelter. In addition to the rental terms and payments provided for above, COMMUNICATIONS COMPANY shall pay City a one-time non-refundable fee of Twelve Thousand Five Hundred Dollars ($12,500.00) as compensation for COMMUNICATIONS COMPANY's use of a portion of the Property for a building ("Equipment Shelter") for the storage of Equipment related to the Antennae. Exhibit D depicts the size, location and configuration of the Equipment Shelter on the Property . COMMUNICATIONS COMPANY's use of the Equipment Shelter shall be exclusive. The exterior fmish of the building must be brick or a material which simulates the appearance of a brick fascia. The building construction plan shall be submitted in accordance with City policy and design and zoning criteria and subject to the review and approval of the City of Prior Lake before construction. The appearance of the Equipment Shelter shall match the existing Equipment Shelter depicted in Exhibit D . COMMUNICATIONS COMPANY shall provide for and be responsible for all utility services used by COMMUNICATIONS COMPANY and the maintenance of the Equipment Shelter . COMMUNICATIONS COMPANY shall be entitled to the exclusive use of the Equipment Shelter during the Initial Term and during Renewal Terms. 4. Use. A. COMMUNICATIONS COMPANY may use the Property and the Water Tower solely for the purpose of constructing, installing, removing, replacing, maintaining, and operating the Antennae, subject to such modifications and alterations as may result from changes or improvements in technology. Prior to COMMUNICATIONS COMPANY installing, subsequently modifying, or removing the Antennae and the Equipment it shall provide written notice to the City, along with copies of the plans and specifications of the work. The City shall have the right to approve the manner of installation and the location on the Water Tower where 43517 2 COMMUNICATIONS COMPANY installs the Antennae, which approval shall not be unreasonably withheld or delayed. COMMUNICATIONS COMPANY shall not install any subsequent antennae (beyond the original twelve (12)) without negotiating a written addendum to this Agreement, which addendum shall include an increase in the annual rental fee. B. COMMUNICATIONS COMPANY shall store all Equipment related to the Antennae in the Equipment Shelter. C. City will not in any way be responsible for the Antennae, the related Equipment, the Equipment Shelter, or any personal property actually placed on the Property or in the Equipment Shelter or installed on the Water Tower by COMMUNICATIONS COMPANY. D. The Antennae and the related Equipment shall remain the property of COMMUNICATIONS COMPANY, subject to the terms of Paragraphs 7 and 8. E. The City shall provide COMMUNICATIONS COMPANY with twenty-four (24) hour, seven (7) day a week, year-around access to the Property and to the Water Tower, subject to the City's right to limit access to the Water Tower in cases of emergency or at times when the City is conducting repairs or maintenance on the Water Tower. The City shall use reasonable efforts to minimize the disruption of COMMUNICATIONS 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 COMMUNICATIONS COMPANY if City incurs any costs associated with providing COMMUNICATIONS COMPANY access to Water Tower, Property or Equipment Shelter except in those cases where cost is incidental to City obtaining access for its own purposes unrelated to COMMUNICATIONS COMPANY's use of Antennae, Water Tower and Equipment Shelter. Notwithstanding the foregoing, "access" does not require or impose upon the City an affrrmative duty to snowplow in order to provide "access" to the Property or to the Water Tower. The City shall not be responsible in damages or otherwise for interruption in COMMUNICATIONS COMPANY services where the interruption is due to an emergency or performance of maintenance and repairs on the Water Tower. F . COMMUNICATIONS COMPANY shall take all steps necessary to prevent any mechanics' or materialmen's liens from being placed on the Property as a result of COMMUNICATIONS COMPANY's use of the Water Tower, Property and Equipment Shelter, and specifically indemnifies the City from such liens. G. The color of the Antennae and any Equipment placed on the Water Tower shall match the color of the Water Tower. H. COMMUNICATIONS COMPANY shall pay all personal and real property taxes assessed against the Antennae, related Equipment and/or Equipment Shelter. If any such improvements constructed on the Property should cause part of the Property to be taxed for real estate purposes, it shall be the liability of COMMUNICATIONS COMPANY to pay such property taxes. I. The City represents and warrants to COMMUNICATIONS COMPANY that COMMUNICATIONS COMPANY shall enjoy ingress, egress, and access from an open and 43517 3 improved public road to the Property adequate to service the Property and the Equipment Shelter at all times during this Agreement and at no additional charge to COMMUNICATIONS COMPANY. Any access easements rented to COMMUNICATIONS COMPANY shall terminate upon termination of this Water Tower Antennae Agreement and COMMUNICATIONS COMPANY agrees to execute any and all documents necessary to remove the easement from the Property. 5. Maintenance of Antennae: Modification. COMMUNICATIONS COMPANY shall maintain the Antennae, Equipment, and Equipment Shelter in good condition at all times, at its sole cost and expense. COMMUNICATIONS COMPANY shall conduct all repair, replacement and maintenance operations in accordance with applicable OSHA regulations or such other occupational and safety regulations pertaining to such operations. Every five (5) years from the commencement date of this Agreement, COMMUNICATIONS COMPANY shall have the Antennae and Water Tower inspected by a Registered Civil Engineer and provide the City with a copy of the inspection report. If COMMUNICATIONS COMPANY fails to do so, and such failure creates a risk of damage or injury to persons or property (as determined in the reasonable discretion of the City), the City may take such steps as it determines to be necessary to protect persons or property; including removal of the Antennae and the Equipment. COMMUNICATIONS COMPANY shall reimburse the City for any costs incurred in connection with assuring compliance with the provisions of this paragraph; including any costs of restoring the Water Tower and the Property to their original condition. If COMMUNICA nONS 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 years rent. These remedies are nonexclusive, and the City expressly reserves its rights to pursue any available legal or equitable remedies. 6. Utilities. COMMUNICATIONS COMPANY shall separately meter and pay all electric and other utility services that are associated with the use of the Property, the Water Tower, and the Equipment Shelter. The City agrees to cooperate with COMMUNICATIONS COMPANY in its efforts to connect the Antennae and Equipment to existing utility service at COMMUNICATIONS COMPANY's expense. The City makes no representation or warranty regarding the availability of electric or other utility service to the Water Tower or the Equipment Shelter . COMMUNICATIONS COMPANY shall have the right to install utilities, at COMMUNICATIONS COMPANY's expenSe, and to improve the present utilities on the Property including, but not limited to the installation of emergency power generators within the Equipment Shelter. The City shall not be liable, and COMMUNICA nONS COMPANY waives any and all claims against the City, for any interruption of electrical or other utility services Property, Antennae or Equipment Shelter. 7. Removal of Antennae and Equipment. A. COMMUNICATIONS COMPANY shall remove the Antennae and all personal property and trade fIXtures at its own cost and expense upon the expiration of the term of this Agreement, any earlier termination of this Agreement as provided herein, or any Renewal Term. COMMUNICATIONS COMPANY shall, at its sole cost and expense, return the Water Tower and the Property to the condition it was in prior to the commencement of this Agreement, normal wear and tear excepted. In the event COMMUNICATIONS COMPANY fails to so remove any component of the Antennae, the Equipment, or both, or to return the Water Tower 43517 4 and the Property to their original condition, within thirty (30) days of the termination of this Agreement, then the City shall have the right to remove the Antennae or Equipment at COMMUNICATIONS COMPANY's sole cost and expense. If COMMUNICATIONS COMPANY fails to reclaim the Antennae or Equipment with thirty (30) days' notice from the date of removal by the City, said Antennae and Equipment shall without further notice be deemed abandoned. No Antennae or Equipment will be released by the City to COMMUNICATIONS COMPANY until COMMUNICATIONS COMPANY has reimbursed the City for all expenses related to removing the Antennae and the Equipment and returning the Property and the Water Tower to their original condition. . B. Upon the termination of this Agreement, without regard to the cause for such termination, all right, title and interest in and to the Equipment Shelter shall be vested with the City. Upon such termination, and at the election of the City the Equipment Shelter shall either remain upon the Property in the location depicted on Exhibit D or at the sole expense of the COMMUNICATIONS COMPANY be removed and the Property returned to its original condition. 8. Termination. A. Except as otherwise provided herein, this Agreement may be terminated by either party upon sixty (60) days' written notice to the other party, only as follows: (a) (b) (c) (d) 43517 by either party upon default of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default to the other party (without, however, limiting any other rights of the parties pursuant to any other provisions hereof); by COMMUNICATIONS COMPANY for cause if it is unable to obtain or maintain any license, permit, or other governmental approval necessary for the construction and/or operation or use of the Property and the Water Tower as a transmission facility and Equipment Shelter; by COMMUNICATIONS COMPANY for cause if the Property is or becomes unacceptable for technological reasons under COMMUNICATIONS COMPANY's design or engineering specifications for its Antennae or related Equipment; by the City if COMMUNICATIONS COMPANY fails to tender the annual rental payment within fifteen (15) business days of the commencement date of each year; (e) by the City if it determines, after consultation with a licensed structural engineer that the Water Tower is structurally unsound for use as a water tower, for any reason including but not limited to considerations related to the age of the structure, damage to or destruction of all or part of the Water Tower or the Property from any source, or factors relating to the condition of the Property; 5 (t) by the City, if its City Council decides, for any reason, to discontinue use of the Water Tower for all purposes, in which event COMMUNICATIONS COMPANY shall not be entitled to compensation in any form for any reason as a result of the City's exercising its rights under this subparagraph; or (g) by COMMUNICATIONS COMPANY if City causes electrical utility services to be interrupted for a period of more than thirty (30) days. B. If City terminates this Agreement other than as of right as provided in this Agreement, or City causes interruption of the business of COMMUNICATIONS COMPANY or for any other City breach of this Agreement, City's liability for damages to COMMUNICATIONS COMPANY shall be limited to the actual and direct costs of Equipment removal, relocation or repair and shall specifically exclude any recovery for value of the business of COMMUNICATIONS COMPANY as a going concern, future expectation of profits, loss of business or profit or related damages to COMMUNICATIONS COMPANY. 9. Non-Exclusive Use. Upon paying the rent as required herein, COMMUNICATIONS 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 COMMUNICATIONS COMPANY from the Antennae. 10. Interference Caused By Antennae. COMMUNICATIONS COMPANY's Equipment shall be installed and operated in a manner which does not cause interference or otherwise impair the quality of the communication services being rendered by the following higher priority users: (1) City; (2) public safety agencies including law enforcement, fIre, and ambulance services, that are not part of the City; and (3) other governmental agencies where use is not related to public safety. 11. Interference with Antennae Operations. A. Temporary Interruptions of Service. If the City determines that continued operation of the Antennae would cause or contribute to an immediate threat to public health and/ or safety (except for any issues associated with human exposure to radio frequency omissions, which is regulated by the federal government), the City may order COMMUNICATIONS COMPANY to discontinue its operation. COMMUNICATIONS COMPANY shall immediately comply with such an order. Service shall be discontinued only for the period that the immediate threat exists. If the City does not give prior notice to COMMUNICATIONS COMPANY, the City shall notify COMMUNICATIONS COMPANY as soon as possible after its action and give its reason for taking the action. The City shall not be liable to COMMUNICATIONS COMPANY or any other party for any interruption in COMMUNICATIONS COMPANY's service or interference with COMMUNICATIONS COMPANY's operation of its Antennae, Equipment or Equipment Shelter, except as may be caused by the negligence or willful misconduct of the City, its employees or agents. In any event, the City's liability shall not extend beyond the obligation to repair the cause of the interruption or interference. If the discontinuance extends for a period greater than three (3) business days, COMMUNICATIONS COMPANY's sole remedy shall be have the right to 43517 6 terminate this Agreement within its sole discretion. B. With Structure. COMMUNICATIONS 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 COMMUNICATIONS COMPANY's cessation of action is material to COMMUNICATIONS COMPANY's use of the Water Tower and Property and such cessation frustrates COMMUNICATIONS COMPANY's use of the Water Tower and Property, within COMMUNICATIONS COMPANY's sole discretion, COMMUNICATIONS COMPANY shall have the immediate right to terminate this Agreement. C. With Higher Priority Users. If COMMUNICATIONS COMPANY's Equipment causes impermissible interference with the parties identified in paragraph 10 above or with pre- existing tenants, COMMUNICATIONS COMPANY shall take all measures necessary to correct and eliminate the interference. If the interference cannot be eliminated within 48 hours after receiving City's written notice of the interference, COMMUNICATIONS COMPANY shall immediately cease operating its Antennae and shall not reactivate operation, except intermittent operation for the purpose of testing, until the interference has been eliminated. If the interference cannot be eliminated within 30 days after COMMUNICATIONS COMPANY received City's written notice, City may at its option terminate this Agreement immediately. D. Interference Studv - New Occupants. Upon written notice by City that it has a bona fide request from any other party to lease an area including or in close proximity to the Water Tower and Property, COMMUNICATIONS COMPANY agrees to provide City, within twenty (20) days, the radio frequencies currently in operation or to be operated in the future of each transmitter and receiver installed and operational on the Water Tower and Property at the time of such request. City may then have an independent registered professional engineer of City's choosing perform the necessary interference studies to determine if the new applicant's frequencies will cause harmful radio interference to COMMUNICATIONS COMPANY. City shall require the new applicant to pay for such interference studies. City agrees that it will not grant a future lease in the Water Tower and Property to any party who is of equal or lower priority to COMMUNICATIONS COMPANY, if such party's use is reasonably anticipated to interfere with COMMUNICATIONS COMPANY's operation of its Antennae or Equipment. 12. Future Development. COMMUNICATIONS 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 in the sole discretion of the City. In the event that City undertakes such use, then the City and COMMUNICATIONS COMPANY agree to cooperate with one another as necessary to facilitate both parties use of the Property. 13. Indemnity . A. General. COMMUNICATIONS COMPANY agrees to defend, indemnify and hold harmless City and its elected officials, officers, employees, agents, and representatives, from and against any and all claims, costs, losses, expenses, demands, actions or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation, which may be asserted against or incurred by the City or for which the City may be liable in the 43517 7 perfonnance of this Agreement, except those which arise solely from the negligence, willful misconduct, or other fault of the City . COMMUNICATIONS COMPANY shall defend all claims arising out of the installation, operation, use, maintenance, repair, removal, or presence of COMMUNICATIONS COMPANY's Antennae, Equipment and related facilities on the Property . l.... B. Hazardous Materials. City represents that City has no knowledge of any substance, chemical, or waste on the Property that is identified as Hazardous Materials, toxic or dangerous in any applicable federal, state or local law or regulation. Without' limiting the scope of Subparagraph 13(A) above, COMMUNICATIONS COMPANY will be solely responsible for and will defend, indemnify, and hold the City, its agents, and employees harmless from and against any and all claims, costs, and liabilities, including attorney's fees and costs, arising out of or in connection with the cleanup or restoration of the Water Tower and Property associated with COMMUNICATIONS COMPANY's use of Hazardous Materials. For purposes of this Agreement, "Hazardous Materials" shall be interpreted broadly and specifically includes, without limitation, asbestos, fuel, batteries or any hazardous substance, waste, or materials as defmed in any federal, state, or local environmental or safety law or regulations including, but not limited to, CERCLA. C. COMMUNICATIONS COMPANY's Warranty. COMMUNICATIONS COMPANY represents and warrants that its use of the Water Tower, Property and Equipment Shelter will not generate and COMMUNICATIONS COMPANY will not store or dispose of on the Property, nor transport to or over the Water Tower or Property, any Hazardous Materials, unless COMMUNICA TIONS COMPANY specifically informs the City thereof in writing twenty-four hours prior to such storage, disposal or transport, or otherwise as soon as COMMUNICATIONS COMPANY becomes aware of the existence of Hazardous Materials on the Property. The obligations of this paragraph 13 shall survive the expiration or other termination of this Agreement. 14. Damage to the Water Tower or to the Property . COMMUNICATIONS 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 COMMUNICATIONS COMPANY, or those of its agents, representative, employees, contractors, or subcontractors, cause such damage or interference, COMMUNICATIONS COMPANY will cure damage or interference within thirty (30) days after receipt of written notice. If COMMUNICATIONS 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 COMMUNICATIONS COMPANY. 15. Casualty. If any portion of the Property, Water Tower or Antennae is damaged by any casualty and such damage materially and adversely affects COMMUNICATIONS COMPANY's use of the Water Tower or Property, COMMUNICATIONS COMPANY may give thirty (30) days' notice of its intention to terminate this Agreement. Such notice must be given within fifteen (15) days of notice of the casualty. If the Agreement is terminated under the provisions of this paragraph, the COMMUNICATIONS COMPANY shall not be entitled to retain any portion of the annual rental. 43517 8 16. Ouiet En10yment. COMMUNICATIONS COMPANY, upon paying the rent, shall peaceably and quietly have, hold and enjoy the Property and Water Tower. If, as of the date of execution of this Agreement or hereafter, there is any mortgage, or other encumbrance affecting the City's Property or Water Tower, then City agrees to obtain from the holder of such encumbrance an Agreement that COMMUNICATIONS COMPANY shall not be disturbed in its possession, use and enjoyment of the Property and Water Tower. The City shall not cause or permit any use of the Property which interferes with or impairs the quality of the communication services being rendered by COMMUNICATIONS COMPANY from the Property . 17. Insurance. A. As long as this Agreement is in effect, COMMUNICATIONS 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 13 of this Agreement. Said insurance policy shall list the City as an additional insured party. Said policy shall contain a clause that provides that the insurer will not cancel, non-renew, or materially change the policy without first giving the City thirty (30) days prior written notice. COMMUNICATIONS COMPANY shall provide the City with a Certificate of Insurance for said policy which specifically details the conditions of the paragraph. COMMUNICATIONS COMPANY shall also maintain fIre and extended coverage insurance insuring COMMUNICATIONS COMPANY'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 and Equipment Shelter, but only to the extent that such loss is collected under such insurance policy(s). Any policy required to be obtained pursuant to this Paragraph 17 shall contain a Waiver of Subrogation in favor of the other party to this Agreement. C. COMMUNICATIONS COMPANY shall provide City with proof of workers' compensation insurance covering all of COMMUNICATIONS COMPANY's employees and agents who access the Property. 18. Condition of Prooertv. COMMUNICATIONS COMPANY acknowledges that the City makes no representations or warranties regarding the suitability of the Property or the Water Tower for COMMUNICATIONS COMPANY's intended use under this Agreement. City represents that the Water Tower and Property are in compliance with all building and other life! safety codes. 19. Condemnation. In the event the whole of the Property is taken by eminent domain, this Agreement shall terminate as of the date title to the Property vests in the condemning authority. In the event a portion of the Property is taken by eminent domain, either party shall have the right to terminate this Agreement as of said date of title transfer, by giving thirty (30) days' written notice to the other party. In the event of any taking under the power 43517 9 of eminent domain, COMMUNICATIONS COMPANY shall not be entitled to any portion of the reward paid for the taking and the City shall receive full amount of such award. COMMUNICATIONS 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 , COMMUNICATIONS COMPANY shall have the right to claim and recover from the condemning authority, but not from City, such compensation as may be separately awarded or recoverable by COMMUNICA nONS COMPANY on account of any and all damage to COMMUNICATIONS COMPANY's business and any costs or expenses incurred by City in moving/removing its Antennae, Equipment or personal property. Sale of all or part of Water Tower or Property to a purchaser with power of eminent domain in the face of the exercise of the private, shall be treated as a taking by condemnation. 20. Waiver. Except as otherwise provided in this Agreement, the rights and remedies of the parties to this Agreement, whether provided by law or by this Agreement shall be cumulative, and the exercise by either party of anyone or more of such remedies shall not preclude the exercise by it, at the same or different times, of any such remedies for the same default or breach of any of its remedies for any other default or breach or of any of its remedies for any other default or breach by the other party. No waiver made by either such party with respect to the performance, or manner of time thereof, or any obligation under this Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligation of the other party or condition to its own obligation beyond those expressly waived in writing and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver of any other obligation of the other party. Delay by a party hereto in instituting or prosecuting any cause of action or claim hereunder shall not be deemed a waiver of any rights hereunder. 21. Miscellaneous. A. Whole AS!reement: Modification: This Agreement contains all of the terms and conditions relating to the rights granted herein, and replaces any oral agreements or other negotiations between the parties relating to the Agreement. No modifications to this Agreement shall be valid unless and until they have been placed in writing and signed by both parties hereto. B. Severability: If any term of this Agreement is found to be unenforceable or invalid by a court of competent jurisdiction, such unenforceability or invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. C. Authority: Each party represents and warrants that it has full authority to enter into and to sign this Agreement. D. Counterparts: The parties may sign this Agreement in counterparts. E. 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 COMMUNICATIONS COMPANY. 43517 10 F. Assignment and Deleeation: (a) By COMMUNICATIONS COMPANY: Except for COMMUNICATIONS COMPANY's affiliates or subsidiaries, COMMUNICATIONS COMPANY may not assign or pledge its rights or delegate its duties under this Agreement without the City's prior written consent, which consent the City shall not unreasonably withhold. For purposes of this Section, an "affiliate" means an entity that controls, is controlled by, or is under common control with COMMUNICATIONS COMPANY. No assignment or delegation shall release COMMUNICATIONS COMPANY from any of its obligations arising under this Agreement. (b) By the City: The City may freely assign its rights and delegate its duties under this Agreement to a joint powers organization of which it is now a member, or to any such organization to which it may become a member during the term of this Agreement. G. Notices: Notices shall be in writing and personally delivered, sent by United States Mail, postage prepaid, certified or registered with return receipt requested or by any nationally recognized overnight courier service to the following: If to City: City of Prior Lake A TIN: City Manager With a Copy to: Suesan Lea Pace Campbell, Knutson, Scott & Fuchs, P.A. 1380 Corporate Center Curve 317 Eagandale Office Center Eagan, MN 55121 If to Department ATTN: With a Copy to: A TIN: Real Estate Department H. Estol'pel 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. Governine Law: This Agreement shall be construed in accordance with the laws of the State of Minnesota. 43517 11 J. Broker. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker, and shall hold the other party harmless from any claims for commission by such broker. K. Memorandum of Lease. City agrees to cooperate with COMMUNICATIONS COMPANY in executing any documents (including a Memorandum of Lease) necessary to protect COMMUNICATIONS COMPANY's rights hereunder or COMMUNICATIONS COMPANY's use of the Water Tower, Property or Equipment Shelter. L. Headings. Headings at the beginning of paragraphs herein are for convenience of reference, shall not be considered part of this Agreement and shall not influence its construction. IN WITNESS HEREOF, the parties have executed this Agreement as of the date first above written. CITY OF PRIOR LAKE Approved as to form and execution: By Its Mayor City Attorney By Its City Manager By Its By Its 43517 12 STATE OF MINNESOTA ) )ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of , 1996, by Lydia Andren and Frank Boyles, the Mayor and City Manager of the City of Prior Lake, Minnesota, a municipal corporation, on behalf of the City, and pursuant to authority granted by its City Council. Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of 1996, by and the and of , a corporation, on behalf of the corporation. Notary Public DRAFTED BY: CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. 1380 Corporate Center Curve 317 Eagandale Office Center Eagan, MN 55121 (612) 452-5000 SLP:kgm 43517 13 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 , as Lessee, Lessee is leasing from Lessor a certain portion of the real property owned by the Lessor (the "Property"), which is legally described as follows: [LEGAL] and commonly known as 43517 14 EXHmlT B to WATER TOWER ANTENNAE AGREEMENT (Site Plan) 43517 15 EXHmIT 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. COMMUNICATIONS COMPANY's technical reports must establish to its exclusive satisfaction that the property is capable of being suitably engineered to accomplish COMMUNICATIONS COMPANY's intended use of the Property. 43517 16 ,.,,,,,~_~,,__~_,,_,~,~,'__''''"'.__''.''''''M_-''_.'''''_~'~_~~_"'~ . . T .. ..'-'....""_'~r~.'~_'_.._,._,"""'--__....~_,~_";"..~_.""__,=__.~;.O..<>"'_........_-""'........_'...~_..~~.".,_............,~ City of Prior Lake Prior Lake, MN Ph. (612) EXHIBIT D to WATER TOWER ANTENNAE AGREEMENT (Equipment Shelter) Fax (612) Quantity: --L Description: Structure: 43517 Structural Steel Skid Floor. Walls. Ceiling. Roof. Exterior. 17