HomeMy WebLinkAbout10A - Civil Defense Tower
CITY COUNCIL AGENDA REPORT
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
MEETING DATE:
AGENDA #:
PREPARED BY:
NOVEMBER 15, 2004
lOA
JANE KANSIER, PLANNING DIRECTOR
AGENDA ITEM:
CONSIDER APPROVAL OF A RESOLUTION APPROVING
THE CONDITIONAL USE PERMIT TO ALLOW AN
ANTENNA TOWER TO BE LOCATED WITHIN THE
MINIMUM SETBACK AND AUTHORIZING THE MAYOR
AND CITY MANAGER TO SIGN THE CIVIL DEFENSE
TOWER ANTENNA AGREEMENT (CASE FILE #04-122)
DISCUSSION:
Historv: Verizon Wireless has applied for a conditional use permit to
allow the placement of wireless communication antennas on the civil
defense siren structure on property located on the Maintenance Center
property for The Wilds golf course. The existing structure is located
within the required setback for an antenna. The property is located
within The Wilds Planned Unit Development District, and is guided R-
L/MD (Low to Medium Density Residential) on the Comprehensive
Land Use Plan Map. Antennas are a permitted use in all Zoning
Districts. According to Section 1110.600, the required setback for an
antenna tower in a Residential district is a distance equal to the height
of the antenna and the tower. Paragraph 4 of this section allows a
reduction in this setback subject to City Council approval of a
conditional use permit.
The Planning Commission considered this request at a public hearing
on October 25, 2004. The Planning Commission determined this
proposal met the ordinance requirements and recommended approval
of this request subject to specific conditions. A draft copy of the
Planning Commission minutes is attached to this report.
Current Circumstances: Verizon Wireless would like to construct an
antenna tower on the property located at 14998 Wilds Parkway. This
is the site of The Wilds maintenance building. There is an existing 50'
utility pole with the civil defense siren located on this property. This
proposal moves the existing utility pole about 25' to the east, on the
south side of the existing maintenance garage. The proposed tower
will be 70' high and constructed of galvanized steel rather than a
standard wooden utility pole. It will be surrounded by a 7' high
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www.cityofpriorlake.com
Phone 952.447.4230 / Fax 952.447.4245
security fence. The site also includes a utility building, located
immediately east of the existing garage.
Antenna towers, and accessory buildings, are a permitted use in all
Zoning districts. The proposed height of the tower is consistent with
the provisions of Section 1110.503, Paragraph 1, which states, "Multi-
use towers may exceed the height limitations of this subsection by up
to 20 feet." This conditional use permit is required in order to allow
the setback of the tower to be less than the height of the tower.
This proposal is somewhat unique in that the City will continue to own
the antenna tower, which will be constructed and paid for by V erizon.
The civil defense siren will be relocated to the top of the new tower,
and Verizon Wireless will enter into a lease agreement with the City
for the use of the tower. That agreement must also be approved by the
City Council.
The Issues: Section 1108.200 of the City Code sets forth the general
criteria utilized to review a CUP application.
(1) The use is consistent with and supportive of the goals and
policies of the Comprehensive Plan.
Two of the objectives of the Comprehensive Plan are to "maintain
orderly development of and access to utilities" and to "keep
abreast of developments in communications and information
technology and potential impacts on City development." This
proposal is consistent with the goals, objectives, and policies of the
Comprehensive Plan in that it provides a location for improved
technology.
Another objective of the Comprehensive Plan is to "enact and
maintain policies and ordinances to ensure the public safety,
health and welfare." The proposed antenna will continue to be
used for the civil defense siren.
(2) The use will not be detrimental to the health, safety, morals
and general welfare of the community as a whole.
The uses will not be detrimental to the health, safety, and general
welfare of the community as a whole.
(3) The use is consistent with the intent and purpose of the Zoning
Ordinance and the Use District in which the Conditional Use is
located.
One purpose of Section 1110 of the Zoning Ordinance is to
"maximize the use of existing and approved towers and buildings
to accommodate new wireless telecommunication antennas in
order to reduce the number of new towers necessary to serve the
community." The proposed use is consistent with this goal.
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(4) The use will not have undue adverse impacts on governmental
facilities, services, or improvements, which are either existing
or proposed.
The proposed use will not over burden municipal facilities.
(5) The use will not have undue adverse impacts on the use and
enjoyment of properties in close proximity to the conditional
use.
The location of the proposed tower is more than 100' from the
road, and is screened on the north by the existing garage, and on
the south by the existing mature trees. While the tower will be
higher than the existing trees, the greatest impact, at the base, will
be screened from the adjacent residences.
(6) The use is subject to the design and other requirements of site
and landscape plans prepared by or under the direction of a
professional landscape architect, or civil engineer registered in
the State of Minnesota, approved by the Planning Commission
and incorporated as part of the conditions imposed on the use
by the Planning Commission.
No additional landscaping is required.
(7) The use is subject to drainage and utility plans prepared by a
professional civil engineer registered in the State of Minnesota
which illustrate locations of city water, city sewer, fire hydrants,
manholes, power, telephone and cable lines, natural gas mains,
and other service facilities. The plans shall be included as part
of the conditions set forth in the CUP approved by the City
Council.
The plans have been prepared by an architect. Prior to
construction, the applicant will be required to submit signed plans.
(8) The use is subject to such other additional conditions which the
Planning Commission may find necessary to protect the
general welfare, public safety and neighborhood character.
Such additional conditions may be imposed in those situations
where the other dimensional standards, performance
standards, conditions or requirements in this Ordinance are
insufficient to achieve the objectives contained in subsection
1108.202. In these circumstances, the Planning Commission
may impose restrictions and conditions on the CUP which are
more stringent than those set forth in the Ordinance and which
are consistent with the general conditions above. The
additional conditions shall be set forth in the C:UP approved by
the Planning Commission.
The City Council may revise the recommended conditions or attach
additional conditions as they deem appropriate to protect the
general welfare, public safety, and neighborhood character.
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FISCAL IMPACT:
ALTERNATIVES:
RECOMMENDED
MOTION:
REVIEWED BY:
Conclusion: This is a cooperative effort involving a partnership
between the City, the Wilds, and Verizon Wireless. As such, it is
consistent with the 2020 Vision and Strategic Plan. The Planning
Commission and the staff recommend approval of the CUP with the
following conditions:
I. The applicant must receive a building permit prior to any
construction on the site. The plans must be signed at this time.
2. The applicant must enter into a development agreement with the
City for the use of the City's tower.
Budeet ImDact: There is no budget impact with the adoption of this
permit. The City will receive revenue as a result of this lease
agreement.
The City Council has three alternatives:
I. Adopt a Resolution approving the Conditional Use Permit subject
to the listed conditions.
2. Deny the Conditional Use Permit on the basis it is inconsistent with
the purpose and intent of the Zoning Ordinance and/or the
Comprehensive Plan. In this case, the Council should direct the
staff to prepare a resolution with findings of fact for the denial of
these requests.
3. Defer consideration of this item for specific reasons.
Staff recommends Alternative # 1.
A motion and second to approve a Resolution approving the
Conditional Use Permit, subject to the listed conditions set forth above
together with additional conditions the Council deems appropriate, and
authorizing the Mayor and City Manager to sign the Civil Defense
TOU;EFent.
Frank Boyles, City Manager
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16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
CONDITIONAL USE PERMIT
RESOLUTION 04-XX
APPROVING THE CONDITIONAL USE PERMIT TO ALLOW AN ANTENNA TOWER TO BE
LOCATED WITHIN THE MINIMUM SETBACK AND AUTHORIZING THE MAYOR AND CITY
MANAGER TO SIGN THE CIVIL DEFENSE TOWER ANTENNA AGREEMENT
MOTION BY:
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
SECOND BY:
The Prior Lake Planning Commission conducted a public hearing on October 25,
2004, to consider an application from Verizon Wireless to approve a Conditional
Use Permit to allow an antenna tower to be located within the minimum setback on
property located at 14998 Wilds Parkway; and
Notice of the public hearing on said CUP was duly published in accordance with the
applicable Prior Lake Ordinances; and
The Planning Commission proceeded to hear all persons interested in this CUP
and persons interested were afforded the opportunity to present their views and
objections related to the CUP the antenna tower; and
The Planning Commission recommended the City Council approve the CUP with
specific conditions; and
The City Council considered the CUP application for an antenna tower at its regular
meeting on November 15, 2004; and
The City Council finds the CUP for an antenna tower in harmony with both existing
and proposed development in the area surrounding the project; and
The City Council finds the proposed CUP is compatible with the stated purposes
and intent of the Zoning Ordinance as they relate to conditionally permitted uses,
and further, that the proposed CUP meets the criteria for approval of CUP as
contained in Section 1108.202 of the Zoning Ordinance.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE:
1. The recitals set forth above are incorporated herein.
2. The City Council hereby adopts the following findings:
a. The use is consistent with and supportive of the goals and policies of the
Comprehensive Plan.
Two of the objectives of the Comprehensive Plan are to "maintain orderly development of and
access to utilities" and to "keep abreast of developments in communications and information
L:\04 FILES\04 CUP'S\Verizon\cup resolution.DOC
www.cityofpriorlake.com
Page 1
Phone 952.447.4230 / Fax 952.447.4245
technology and potential impacts on City development." This proposal is consistent with the
goals, objectives, and policies of the Comprehensive Plan in that it provides a location for
improved technology.
Another objective of the Comprehensive Plan is to "enact and maintain policies and
ordinances to ensure the public safety, health and welfare." The proposed antenna will
continue to be used for the civil defense siren.
b. The use will not be detrimental to the health, safety, morals and general welfare of the
community as a whole.
The uses will not be detrimental to the health, safety, and general welfare of the community
as a whole.
c. The use is consistent with the intent and purpose of the Zoning Ordinance and the Use
District in which the Conditional Use is located.
One purpose of Section 1110 of the Zoning Ordinance is to "maximize the use of existing and
approved towers and buildings to accommodate new wireless telecommunication antennas in
order to reduce the number of new towers necessary to serve the community." The proposed
use is consistent with this goal.
d. The use will not have undue adverse impacts on governmental facilities, services, or
improvements, which are either existing or proposed.
The proposed use will not over burden municipal facilities.
e. The use will not have undue adverse impacts on the use and enjoyment of properties
in close proximity to the conditional use.
The location of the proposed tower is more than 100' from the road, and is screened on the
north by the existing garage, and on the south by the existing mature trees. While the tower
will be higher than the existing trees, the greatest impact, at the base, will be screened from
the adjacent residences.
f. The use is subject to the design and other requirements of site and landscape plans
prepared by or under the direction of a professional landscape architect, or civil
engineer registered in the State of Minnesota, approved by the Planning Commission
and incorporated as part of the conditions imposed on the use by the Planning
Commission.
No additional landscaping is required.
g. The use is subject to drainage and utility plans prepared by a professional civil
engineer registered in the State of Minnesota which illustrate locations of city water,
city sewer, fire hydrants, manholes, power, telephone and cable lines, natural gas
mains, and other service facilities. The plans shall be included as part of the
conditions set forth in the CUP approved by the City Council.
The plans have been prepared by an architect. Prior to construction, the applicant will be
required to submit signed plans.
h. The use is subject to such other additional conditions which the Planning Commission
may find necessary to protect the general welfare, public safety and neighborhood
character. Such additional conditions may be imposed in those situations where the
other dimensional standards, performance standards, conditions or requirements in
this Ordinance are insufficient to achieve the objectives contained in subsection
1108.202. In these circumstances, the Planning Commission may impose restrictions
and conditions on the CUP which are more stringent than those set forth in the
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Ordinance and which are consistent with the general conditions above. The additional
conditions shall be set forth in the CUP approved by the Planning Commission.
The City Council may revise the recommended conditions or attach additional conditions as
they deem appropriate to protect the general welfare, public safety, and neighborhood
character.
3. The Conditional Use Permit is hereby approved on the property legally described as follows:
Lot 1, Block 7, The Wilds.
4. The Conditional Use Permit is hereby approved subject to the following conditions:
a. The applicant must receive a building permit prior to any construction on the site. The plans
must be signed at this time.
b. The applicant must enter into a development agreement with the City for the use of the City's
tower.
CONCLUSION
Based upon the Findings set forth above, the City Council hereby grants a Conditional Use Permit for
motor vehicle repair. The contents of Planning Case File #04-122 is hereby entered into and made a
part of the public record and the record of the decision for this case.
Passed and adopted this 15th day of November, 2004.
Blomberg Blomberg
Haugen Haugen
LeMair LeMair
Petersen Petersen
Zieska Zieska
YES NO
{Seal} City Manager,
City of Prior Lake
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Planning Commission Meeting
October 25, 2004
If this is approved it will affect the averaging of any other structure. It does have
affect.
· The emption of fill may be a possibility - agree with staff th II the hardships
have n been met.
· The hous can be redesigned.
· Based on al hose reasons - agree with staff to deny.
Stamson:
· It is a difficult lot 1:) t not unusual. There are any small areas on the lake with
difficult slopes and se acks. The buildabl area is similar to lake lots. In some
instances some front ya setbacks gran . Generally we look at a small lot and
prefer to push the house cl er to the reet rather than the lake.
· This particular lot does not m t t hardship. There is plenty of buildable space
for a home. It can be redesign nd the applicant would still have reasonable use
of the property.
· The State requirements hardships are not met in this case.
. V ote against.
MOTION BY ATWOO , SECOND BY RINGS
12PC DENYING A QUESTED FIVE (5) FOOT
REQUIRED 25 F T FRONT YARD SETBACK.
, ADOPTING RESOLUTION 04-
lANCE FROM THE
V ote taken i icated ayes by Atwood, Ringstad, Stamson an
MOTIO ARRIED.
St son explained the appeal process.
.~
B. #04-122 Verizon Wireless has submitted an application for a Conditional
Use Permit to allow a wireless telecommunications facility in a residential district.
This property is located at 14998 Wilds Parkway NW.
Planning Director Jane Kansier presented the Planning Report dated October 25,2004, on
file in the office of the City Planning Department.
Verizon Wireless has applied for a conditional use permit to allow the placement of
wireless communication antennas on the civil defense siren structure on property located
on the Maintenance Center property for The Wilds golf course.
An existing 50' utility pole with the civil defense siren is also located on this property.
This proposal moves the existing utility pole about 25' to the east, on the south side of the
existing maintenance garage. The proposed tower will be 70' high and constructed of
galvanized steel rather than a standard wooden utility pole. It will be surrounded by a 7'
high security fence. The site also includes a utility building, located immediately east of
the existing garage.
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4
Planning Commission Meeting
October 25, 2004
Antenna towers, and accessory buildings, are a permitted use in all Zoning districts. The
proposed height of the tower is consistent with the provisions of Section 1110.503,
Paragraph 1.
This proposal is somewhat unique in that the City will continue to own the tower. The
civil defense siren will be relocated to the top of the new tower, and Verizon Wireless
will enter into a lease agreement with the City for the use of the tower. That agreement
must also be approved by the City Council.
The Planning Staff recommended approval with the following conditions:
1. The applicant must receive a building permit prior to any construction on the site.
The plans must be signed at this time.
2. The applicant must enter into a development agreement with the City for the use of
the City's tower.
Questions from the Commissioners:
Stamson questioned if there were no alternate sites that would provide the required
height. Kansier said this is the only structure. They could put it on an existing 50 foot
pole, whether that could accommodate the antennas we don't know. The pole would
almost have to be replaced one way or another.
Stamson noted past antenna issues.
Lemke clarified the 50 foot wooden pool would be removed.
Comments from the Public:
Jaymes Littlejohn, attorney from Moss and Barnett, representing Verizon Wireless stated
staff s report was thorough. However he did explain the antenna location and the
galvanized poles. The civil defense siren will be on the very top of the pole where
Verizon's antennas will be lower at 15 feet.
Ringstad asked Littlejohn if Verizon needs an antenna or additional antenna to serve the
customers they have. Littlejohn responded the only people present at the hearing were in
favor of the antenna. Ringstad said he has Verizon and the service is poor in that area.
Littlejohn explained this is 10 feet taller than the shortest installation ever done. A mile
to 2 miles in radius would solve a lot of problems.
Renwood Erickson, 2845 Wilds Lane, a Verizon customer said he has very poor service
and almost unable to use their cell phones in their homes. Supports the request.
The public hearing was closed.
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Planning Commission Meeting
October 25, 2004
Comments from the Commissioners:
Ringstad:
· In favor of the proposal and maximizing the existing structure. It would better to
have the one tower instead of two.
Lemke:
· The City comes out very well in this. More of our citizens would be able to
benefit from it. There is no down side. Support.
Perez:
· Agree with Commissioners. This will be a positive impact to the community.
· It is consistent of the goals and policies of the Comprehensive Plan.
· Likes that it is replaced with galvanized steel. Support.
Atwood:
· Agree with Commissioners and support.
Stamson:
· Agree with Commissioners. It is better served in that area.
· As far as placement, in a residential area you couldn't get much better than this.
It is sitting near a maintenance shed for the golf course. There is no negative
impacts.
· Support.
MOTION BY RINGSTAD, SECOND BY ATWOOD, RECOMMENDING
APPROVAL OF A CONDITIONAL USE PERMIT SUBJECT TO THE CONDITIONS
TO ALLOW THE PLACEMENT OF WIRELESS COMMUNICATION ANTENNA
ON THE CIVIL DEFENSE SIREN STRUCTURE ON PROPERTY LOCATED AT
14998 WILDS PARKWAY.
Vote taken indicated ayes by all. MOTION CARRIED.
This matter will go before the City Council on Novem
A.
6. Old
At the August 23,200 lanning Commission meetin, ommissioners reviewed the
City's tree preserv Ion and restoration ordinance. After eva ing the current
ordinance, con sus was reached that the current requirements adequately provide for
L:\04 FILES\04 PLAN COMMIS\04 pc Minutes\MN102504.doc
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CIVIL DEFENSE TOWER ANTENNAE AGREEMENT
THIS AGREEMENT is made and entered into this _ day of , 2004,
by and between the CITY OF PRIOR LAKE, MINNESOTA, a Minnesota municipal
corporation (hereinafter referred to as the "City"), and Verizon Wireless (V A W) LLC d/b/a
Verizon Wireless, a Delaware limited liability company (hereinafter referred to as
"COMMUNICATIONS COMPANY').
RECITALS
A. The City is the fee owner of certain land or has the rights to a dedicated public
utility easement or public right-of-way or other permanent easement 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 civil defense tower owned, operated and
maintained by the City that will be replaced with a new municipal civil defense tower owned,
operated and maintained by the City (hereinafter referred to as the "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
terms of this Agreement.
D. The parties desire to enter into this Agreement relating to the use of the Tower.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and for other good,
valuable and fair consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. A. Construction and Conveyance of the Replacement Tower. City and
COMMUNICA TrONS COMPANY agree that, in order for the Antennae and connecting
appurtenances to be installed on the existing tower on the Property, a replacement Tower will
have to be constructed subject to satisfaction of the conditions described in Exhibit C attached
hereto and incorporated herein, COMMUNICATIONS COMPANY hereby agrees to contract
and pay for the removal of the existing tower and the construction of the replacement Tower at
the location depicted on Exhibit B, attached hereto and incorporated herein (the "Site Plan"). On
the first day of the month following the date the Improvements are completed (the
"Commencement Date"), COMMUNICATIONS COMPANY agrees to convey the replacement
Tower "WHERE IS" and "AS IS" to City pursuant to a quit claim bill of sale in the form
attached as Exhibit D. Rent shall abate beginning on the Commencement Date and continuing
until the total amount of this rent abatement is equal to eighteen thousand dollars ($18,000.00).
The purpose of the rent abatement is in consideration of COMMUNICATIONS COMPANY's
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removal of the existing City-owned civil defense tower and constructing a new tower.
COMMUNICATIONS COMPANY agrees to provide the City with a documents which verifies
the final construction costs of the Tower. The final construction costs must exceed the amount of
the rent abatement. If the final construction cost of the tower, excluding any of the
COMMUNICATION COMPANY's equipment does not exceed the amount of the rent
abatement, COMMUNICATIONS COMPANY shall be responsible for paying the City the
difference between the rent abatement and the final construction costs.
B. Authorization to Use Tower Space. The primary purpose of the City's use of the
Property is to operate and maintain a municipal tower so as to provide emergency notification
service to residents of Prior Lake. Subject to the terms of this Agreement, the City authorizes the
COMMUNICATIONS COMPANY's non-exclusive use of the Tower on the Property, which is
legally described on Exhibit A attached hereto, subject to any and all existing easements and
restrictions not inconsistent with the rights granted hereunder for the purposes described in
Paragraph 4 of this Agreement, including the installation, operation, and maintenance of the
Antennae and the storage of the Equipment. The location on the Tower where
COMMUNICATIONS COMPANY is authorized to install the Antennae, the location of the
City's civil defense siren (which will be located on the top of the Tower), the location of City's
antennas on the Tower and the location of the Equipment Shelter, if any ("Site Plan"), on the
Property are depicted on Exhibit B. COMMUNICATIONS COMPANY shall be entitled to the
exclusive use of that portion of the Tower where COMMUNICATIONS COMPANY is
authorized to install the Antennae.
2. Term. The term of this Agreement shall begin on the Commencement Date,
subject to satisfaction of the conditions described in Exhibit C, and end at midnight five years
later ("Initial Term"). The Initial term of this Agreement shall automatically be extended for
three (3) additional five (5) year terms ("Renewal Term"), subject to the provisions of
paragraph 5, unless COMMUNICATIONS COMPANY gives City written notice of its intention
not 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 the Commencement Date and subject to
the rent abatement d~scribed in Paragraph lA, and on each anniversary date thereof during the
Initial Term, rent shall be paid, in one payment, by COMMUNICATIONS COMPANY to the
City in the annual amount of$6,000.00. Thereafter, the annual rent for the first (1st) five (5)
year Renewal Term shall be increased to Six Thousand Nine Hundred Dollars ($6,900.00); the
annual rental for the second (2nd) five (5) year Renewal Term shall be increased to Seven
Thousand Nine Hundred Thirty-five Dollars ($7,935.00); and the annual rental for the third (3rd)
five (5) year Renewal Term shall be increased to Nine Thousand One Hundred Twenty-five and
25/1 00 Dollars ($9,125.25).
B. Equipment Shelter. The City and COMMUNICATIONS COMPANY
acknowledge that this Agreement is contingent upon the execution of a Land Lease Agreement
between the Property owner and COMMUNICATIONS COMPANY for a portion of the
Property for the purpose of constructing, maintaining and operating a communications facility,
including the Equipment Shelter, and all necessary appurtenances, together with the non-
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exclusive right for ingress and egress and the installation and maintenance of utility wires, poles,
cables and conduits over, under, and/or across the Property. If for any reason said Land Lease
Agreement is terminated by either the Property owner or COMMUNICATIONS COMPANY,
this Agreement shall also terminate without any further action by the City or
COMMUNICATIONS COMPANY. Exhibit B 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 building construction plan shall be submitted in
accordance with City zoning criteria. 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 Tower solely
for the purpose of constructing, installing, removing, replacing, maintaining, and operating the
Antennae and Equipment, subj ect 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, 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
review and comment on the manner of installation and the location on the Tower where
COMMUNICATIONS COMPANY installs the Antennae, which approval shall not be
unreasonably withheld. 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 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 Tower, subject to the
City's right to limit access to the Tower in cases of emergency or at times when the City is
conducting repairs or maintenance on the Tower. The City shall use reasonable efforts to
minimize the disruption of COMMUNICATIONS COMPANY's access to the Tower, in
responding to any such emergencies and performing such maintenance and repairs, and the City
shall give COMMUNICATIONS COMPANY thirty (30) days' notice of any maintenance and
repairs that will limit or restrict access to the Tower. Notwithstanding the foregoing, "access"
does not require or impose upon the City an affirmative duty to snowplow in order to provide
"access" to the Property or to the Tower. The City shall not be responsible in damages or
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otherwise for interruption in COMMUNICATIONS COMPANY services where the interruption
is due to an emergency, performance of maintenance and repairs on the Tower or weather.
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 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 Tower shall match
the color of the Tower.
H. COMMUNICATIONS COMPANY shall pay all personal and real property taxes
assessed against the Antennae, related Equipment and Equipment Shelter. If any such
improvements constructed on the Property should cause part of the Property to be taxed for real
estate purposes, the COMMUNICATIONS COMPANY will be liable to pay such property taxes
or pro rata portion thereof if other COMMUNICATIONS COMPANIES lease space on the
Tower.
1. The City represents and warrants to COMMUNICATIONS COMPANY that
COMMUNICATIONS COMPANY shall enjoy ingress, egress and access from an open and
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
COMP ANY. Any access easements rented to COMMUNICATIONS COMPANY shall
terminate upon termination of this Tower Antennae Agreement and COMMUNICATIONS
COMP ANY 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. The City will keep
the Tower in good repair as required by all federal, state, and local laws. The City shall also
comply with all rules and regulations enforced by the Federal Communications Commission with
regard to the lighting, marking and painting of towers, provided that COMMUNICATIONS
COMP ANY provides City with all notices received related to said rules and regulations.
6. Utilities. COMMUNICATIONS COMPANY shall pay all electric and other
utility services that are associated with its use of the Property, the 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
COMP ANY's expense. The City makes no representation or warranty regarding the availability
of electric or other utility service to the Tower or the Equipment Shelter. COMMUNICATIONS
COMP ANY 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 COMMUNICATIONS COMPANY waives any and all claims against the City, for
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any interruption of electrical or other utility services to the Property, Antennae or Equipment
Shelter, except those which arise from the negligence, willful misconduct, or other fault of the
City.
7. Removal of Antennae and Equipment. 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 as provided for in Paragraph 8, or any Renewal Term. COMMUNICATIONS
COMP ANY shall, at its sole cost and expense, return the 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 do so remove any component
of the Antennae, the connecting equipment, or both, or to return the Tower and the Property to
their original condition, within ninety (90) days of the termination of this Agreement, then the
City shall have the right to remove the Antennae or connecting equipment at
COMMUNICATIONS COMPANY's sole cost and expense. If COMMUNICATIONS
COMPANY fails to reclaim the Antennae or connecting equipment with thirty (30) days' notice
form the date of removal by the City, said Antennae or connecting equipment shall without
further notice be deemed abandoned. No Antennae or connecting 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 connecting
equipment and returning the Property and the Tower to their original condition.
8. Termination. 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)
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by either party upon default of any condition, covenant or term hereofby
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 ifit 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 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, and COMMUNICATIONS
COMPANY does not cure this default within fifteen (15) days of receipt
of notice of such default;
5
,.....
( e) by the City if it determines, after consultation with a licensed structural
engineer that the Tower is structurally unsound for use as a 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 Tower or the
Property from any source, or factors relating to the condition of the
Property and subject to COMMUNICATIONS COMPANY's right to
make any needed repairs and deduct the costs of the repairs from
succeeding rental amounts normally due from COMMUNICATIONS
COMP ANY to the City; or
(t) by COMMUNICATIONS COMPANY if City causes electrical utility
services to be interrupted for a period of more than thirty (30) days.
9. Non-Exclusive Use. Upon paying the rent as required herein,
COMMUNICATIONS COMPANY shall have the right to the non-exclusive use of the Tower
and Property as permitted in this Agreement. The City shall not be .responsible for any
interference caused by the City's equipment used on the Tower which impairs the quality of the
communication services being rendered by COMMUNICATIONS COMPANY from the
Antennae.
10. Interference.
A. 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 equipment being used on the Tower by the following higher
priority users: (1) the equipment of the City; and (2) public safety agencies including; but not
limited to law enforcement, fire, and ambulance services, that are not part of the City.
Notwithstanding the foregoing, once COMMUNICATIONS COMPANY has installed the
twelve (12) antennae on the Tower as provided for in Section 4A, the City will not request or
require COMMUNICATIONS COMPANY to remove said antennae.
B. Interference with Antennae Operations. COMMUNICATIONS COMPANY
understands and acknowledges that the City may utilize the Tower for additional public uses at
some future date, and that the design and manner of such use shall be in the sole discretion of the
City as long as the City's undertaking of such use does not unreasonably interfere with
COMMUNICATIONS COMPANY's use of the Tower and Property.
C. Interference - Temporary Interruptions of Service. 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
COMP ANY'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 against City shall be the right
to terminate this Agreement within its sole discretion.
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D. Interference With Structure. COMMUNICATIONS COMPANY shall not
interfere with City's preexisting use of the 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
COMP ANY's use of the Tower and Property and such cessation frustrates
COMMUNICATIONS COMPANY's use of the Tower and Property, within
COMMUNICATIONS COMPANY's sole discretion, COMMUNICATIONS COMPANY shall
have the immediate right to terminate this Agreement. Termination of this Agreement is
COMMUNICATION COMPANY's sole and exclusive remedy. COMMUNICATIONS
COMP ANY shall not seek damages against City in any form.
E. Interference With Higher Priority Users. If COMMUNICATIONS
COMP ANY's Equipment causes impermissible interference with the parties identified in
paragraph 10 above or with preexisting 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 CaMP ANY 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. City shall not be responsible for any costs, expenses or
revenues lost by virtue of City exercising its rights pursuant to this provision. Notwithstanding
the foregoing, if the higher priority user's antennas are located within fifteen (15) feet of the
antennas of COMMUNICATIONS COMPANY, then current FCC regulations related to
interference shall govern the rights of the higher priority user and the obligations of
COMMUNICATIONS COMPANY, and the City may not terminate the Agreement as provided
in this section.
F. Interference Study - 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
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 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 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.
11. Indemnity.
A. General. COMMUNICATIONS CaMP ANY 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
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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 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
COMP ANY's Antennae, Equipment and related facilities on the Property, except those which
arise from the negligence, willful misconduct, or other fault of the City.
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 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 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 defined in
any federal, state, or local environmental or safety law or regulations including, but not limited
to, CERCLA. City and COMMUNICATIONS COMPANY acknowledge that
COMMUNICATIONS COMPANY shall be utilizing and maintaining on the Property sealed
batteries, propane/dieseVgasoline, HV AC system, and a halon/FM200 fire suppression system
and that the use and maintenance of such items shall not constitute a violation or breach of the
preceding sentences of this paragraph or subparagraph C below.
C. COMMUNICATIONS COMPANY's Warranty. COMMUNICATIONS
COMPANY represents and warrants that its use of the 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 Tower or Property, any Hazardous Materials, unless
COMMUNICATIONS COMPANY specifically informs the City thereof in writing twenty-four
hours prior to such storage, disposal or transport, or otherwise as soon as COMMUNICATIONS
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.
12. Damage to 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 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. Nothing in this paragraph shall be deemed to constitute an
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8
election of remedies and the City may remedy the damage and seek reimbursement from the
COMMUNICATIONS COMPANY pursuant to paragraph 8(a), or both.
13. Casualty. If any portion of the Property, Tower or Antennae is damaged by any
casualty and such damage materially and adversely affects COMMUNICATIONS COMPANY's
use of the 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. The City is not required to repair the damage caused by the casualty. If the
City decides not to repair the damage, COMMUNICATIONS COMPANY may make the repairs
and COMMUNICATIONS COMPANY shall have the right to deduct the costs of the repairs
from succeeding rental amounts normally due from COMMUNICATIONS COMPANY to the
City. The COMMUNICATIONS COMPANY is not entitled to seek damages, including but not
limited to loss of going concern, if the City, in its sole discretion, determines not to repair the
Property or Tower.
14. Quiet Enjoyment. COMMUNICATIONS COMPANY, upon paying the rent,
shall peaceably and quietly have, hold and enjoy the Property and 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 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 Tower. The City shall not use the Property in a manner
which interferes with or impairs the equality of the communication services being rendered by
COMMUNICATIONS COMPANY from the Property.
l5. 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
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) per
occurrence, and shall include contractual liability coverage to provide coverage for the
indemnification provision in paragraph 13 of this Agreement subject to standard policy
provisions and exclusions. Said insurance policy shall list the City as an additional insured
party. The insurance policy will not be cancelled without first giving the City at least thirty (30)
days prior written notice. COMMUNICATIONS COMPANY shall provide the City with a
Certificate of Insurance for said policy which complies with the insurance requirements above,
and Tenant shall provide a Certificate of Insurance with each policy renewal.
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
which may hereafter arise on account of damage to the Tower or to the Property, resulting from
any fire, or other casualty of the kind covered by standard fire insurance policies with extended
MIN BLACKJACK
9
coverage, regardless of whether or not such insurance is now or hereafter carried by the parties,
or either of them. These waivers and releases shall apply between the parties and they shall also
apply to any claims under or through either party as a result of any asserted right of subrogation.
Nothing herein is intended to waive the City's statutory tort immunity limitations set out in
Minnesota Statute Chapter 466.
C. COMMUNICATIONS COMPANY shall provide City with proof of workers'
compensation insurance covering all of COMMUNICATIONS COMPANY's employees who
access the Property.
16. Condition of Property. COMMUNICATIONS COMPANY acknowledges that the
City makes no representations or warranties regarding the suitability of the Property or the Tower
for COMMUNICATIONS COMPANY's intended use under this Agreement. City represents
that the Tower and Property are in compliance with all building and other life/safety codes.
17. Condemnation. In the event the whole of the Property is taken by eminent
domain, either Party may terminate this Agreement by giving written notice to the other party.
In the event a portion of the Property is taken by eminent domain, either party shall have the
right to terminate this Agreement by giving thirty (30) days' written notice to the other party if
such condemnation may reasonably be expected to disrupt the operations at the Property for
more than forty-five (45) days. In the event of any taking under the power of eminent domain,
COMMUNICATIONS COMPANY shall not be entitled to any portion of the award paid for the
taking and the City shall receive full amount of such award. 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 such compensation as may be separately awarded or
recoverable by COMMUNICATIONS COMPANY on account of any and all damage to
COMMUNICATIONS COMPANY's business and any costs or expenses incurred in
moving/removing and relocating its Antennae, Equipment or personal property. Sale of all or
part of Tower or Property to a purchaser with power of eminent domain in the face of the
exercise of the power, shall be treated as a taking by condemnation.
18. 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.
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19. Miscellaneous.
A. Whole Agreement; Modification. This Agreement contains all of the terms and
conditions relating to the rights granted herein, and replaces any oral agreements or other
negotiations between the parties relating to the Agreement. No modifications to this Agreement
shall be valid unless and until they have been placed in writing and signed by both parties hereto.
B. 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.
F. Assignment and Delegation.
(a) By COMMUNICATIONS COMPANY. Except for
COMMUNICATIONS COMPANY's affiliates or subsidiaries or any
entity which acquires all or substantially all of COMMUNICATIONS
COMP ANY's assets in the market defined by the Federal
Communications Commission in which the Property is located by reason
of a merger, acquisition or other business reorganization,
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 or delay.
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:
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11
_'--'-'-h'"~_""'''''''''""__,_,_,__'_''''~,~,,W_'~<'_'__~'''__,~,_._""............____."...,'"'_,.~......""~_..___~~____~,.~.
If to City:
City of Prior Lake
16200 Eagle Creek Ave SE
Prior Lake, MN 55372
A TTN: City Manager
With a Copy to:
Suesan Lea Pace
Halleland, Lewis, Nilan, Sipkins & Johnson.
600 Pillsbury Center South
220 South Sixth Street
Minneapolis, MN 55402-4501
If to COMMUNICATIONS COMPANY:
Verizon Wireless (V A W) LLC d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
H. Estoppel Certificate. Each party agrees to furnish to the other, within ten (10)
days after request, such truthful estoppel information as the other may reasonably request.
1. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of Minnesota.
J. Broker. If either party is represented by a real estate broker in this transaction,
that party shall be fully responsible for any fee due such broker, and shall hold the other party
harmless from any claims for commission by such broker.
K. Memorandum of Lease. City agrees to cooperate with COMMUNICATIONS
COMP ANY in executing any documents (including a Memorandum of Lease) necessary to
protect COMMUNICATIONS COMPANY's rights hereunder or COMMUNICATIONS
COMPANY's use of the Tower, Property or Equipment Shelter.
L. Headings. Headings at the beginning ofparagraphs)herein are for convenience of
reference, shall not be considered part of this Agreement and shall not influence its construction.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
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12
IN WITNESS HEREOF, the parties have executed this Agreement as of the dates
indicated below.
APPROVED FOR FORM AND
EXECUTION
CITY OF PRIOR LAKE
,~;H"""t"'.
Suesan Lea Pace
City Attorney
By
Frank Boyles
Its City Manager
Date:
By
Jack G. Haugen
Its Mayor
Date:
COMMUNICATIONS COMPANY
Verizon Wireless (V A W) LLC
d/b/ a Verizon Wireless
By
Howard H. Bower
Its: Midwest Area Vice President - Network
STATE OF MINNESOTA)
)ss.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of
,2004, by Jack G. Haugen 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
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13
STATE OF
)
) ss.
)
COUNTY OF
On this day of ,2004, before me, the undersigned, a Notary
Public in and for the State of , duly commissioned and sworn, personally
appeared Howard H. Bower to me known to be an authorized representative of Verizon Wireless
(V A W) LLC d/b/a Verizon Wireless, the limited liability company that executed the foregoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed of
Verizon Wireless (V A W) LLC d/b/a Verizon Wireless, for the uses and purposes therein
mentioned, and on oath stated that he is authorized to execute the said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
Print Name:
Notary Public in and for the State of
residing at
My Commission Expires
DRAFTED BY:
HALLELAND, LEWIS, NILAN, SIPKlNS & JOHNSON
600 Pillsbury Center South
220 South Sixth Street
Minneapolis, MN 55402-4501
713930vl
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14
EXHIBIT A
to
CIVIL DEFENSE TOWER ANTENNAE AGREEMENT
(Legal Description)
Pursuant to that certain Tower Antennae Agreement dated
between the City of Prior Lake, and Lessor and Verizon Wireless (V A W) LLC d/b/a Verizon
Wireless, as Lessee, Lessee is leasing from Lessor a certain portion of tower to be owned by the
Lessor (the "Property"), which is on property legally described as follows:
Lot 1, Block 7, The Wilds, according to the recorded plat thereof, and situate in
Scott County, Minnesota and commonly known as 14998 Wilds Parkway NW,
Prior Lake MN 55372.
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"-'~'-'''''~~'"'''--''''~"'''''~''---'''~._-''''''''''-'-~''''''''''''_.~--^------..---.,--------,,,..
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EXHIBIT B
to
CIVIL DEFENSE TOWER ANTENNAE AGREEMENT
(Site Plan)
~'."'~"'-~_"""_""---<"~"""""'-----~""~_.'~---,--,-~-_.-.-.-
Exhibit "Bl"
City of Prior Lake, Minnesota
Public Service, Civil Defense
Siren/T elecommunications Tower
1. The Tower shall be engineered and designed for the Civil Defense Siren and other public
service uses for the needs of Verizon Wireless, and its successors and assigns, and an
additional three telecommunications carriers.
2. The Tower shall be constructed to a height of seventy (70) feet from the point of contact
with the ground to the highest point on the Civil Defense Siren, with the footings and
structural capacity of the Tower to be constructed such that an additional ten (10) feet of
structure may be added to the Tower at any time after initial construction, subject to
written approval by Grantee.
3. Verizon Wireless shall be limited to twelve (12) antennas on the Civil Defense Siren/
Telecommunications Tower.
4. Grantee shall have the exclusive and absolute right to modify, change, expand, or
otherwise alter the Civil Defense Siren/Telecommunications Tower subsequent to its
initial" construction, subj ect only to the terms and conditions expressed herein, provided
however that there exists no obligation on the part of Grantee to extend in the future the
height of the Tower as hereinafter provided for.
ON: 236659
EXHIBIT C
to
CIVIL DEFENSE 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.
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EXHIBIT D
to
CIVIL DEFENSE TOWER ANTENNAE AGREEMENT
QUIT CLAIM BILL OF SALE
FOR VALUABLE CONSIDERATION, Verizon Wireless (VA W) LLC d/b/a Verizon
Wireless, Seller, sells and conveys to the CITY OF PRIOR LAKE, MINNESOTA, a
Minnesota municipal corporation, Buyer, the following personal property located on Lot 1,
Block 7, The Wilds, according to the recorded plat thereof, and situate in Scott County,
Minnesota: Seller's tower.
SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE CONDITION OF
THE PERSONAL PROPERTY OR ITS MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE. BY ITS ACCEPTANCE OF THIS BILL OF SALE, BUYER
ACKNOWLEDGES THAT IT HAS FULLY INSPECTED THE PERSONAL PROPERTY
AND BUYER ACCEPTS THE SAME "WHERE IS" AND IN ITS PRESENT USED AND "AS
IS" CONDITION.
This Bill of Sale merely conveys to Buyer all right, title and interest, if any, of Seller in such
personal property.
Buyer hereby forever releases, relieves, discharges and covenants not to sue Seller for any and
all, claims, liabilities, demands, costs and expenses (including attorneys ' fees), actions,
proceedings, causes of action of any kind, known or unknown, claimed or concealed, based on
any theory whatsoever, which Buyer has, ever had, or ever claims to have ever had against
Seller, which are in any way related to the condition of the personal property.
This Quit Claim Bill of Sale contains the entire agreement and representations of the parties
related to the condition of the personal property, may not be altered except by a written
instrument signed by both parties, and shall be construed in accordance with the laws of
Minnesota.
SELLER:
Verizon Wireless (V A W) LLC d/b/a Verizon
Wireless
By:
Howard H. Bower
Its: Vice President, Northeast-Midwest
Dated:
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-.. ,,-,., ~_~'."A~"""O~~~'''_'''''''''''~;""""",,_,~~__,_~,
Location Map
Verizon Property
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MO S S & BARNETT
JA YMES D. LITTLEJOHN
612.347.0274
Littlej ohnJ@moss-bamett.com
.. A Professional Association
4800 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4129
Telephone 612.347.0300
Facsimile 612.339.6686
v.rww.moss-bamett.com
September 24, 2004
City of Prior Lake
Attn: Jane Kansier
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372
Re: Applicationfor Conditional Use Permitfor the
Collocation of Antennas on the City's Civil Defense Siren Pole
and Site Plan Approval of the Equipment Shelter on Lot 1, Block 7
The Wilds, commonly known as 14998 Wilds Parkway NW, Prior Lake MN 55372
Dear City Council Members and Planning Commissioners:
Our firm represents Verizon Wireless (V A W) LLC d/b/a Verizon Wireless who provides Verizon
Wireless service to the Prior Lake area and much of the metro area. This letter is an application for
a Conditional Use Permit to allow Verizon Wireless to collocate twelve (12) antennas on the City
of Prior Lake's civil defense siren pole and for site plan approval of Verizon Wireless's equipment
shelter.
New Civil Defense Pole with Cellular Antennas to be Installed. Currently there is a 50 foot
municipal civil defense pole located on Lot 1, Block 7, The Wilds, (the "Property") that is owned,
operated and maintained by the City of Prior Lake ("City"). This wooden pole will be replaced
with a steel monopole and extended 20 feet. The replacement civil defense pole will be owned,
operated and maintained by the City (hereinafter referred to as the "Civil Defense Pole"). As part
of Verizon Wireless's collocation lease with the City, Verizon Wireless will construct the civil
defense pole for the City, and Verizon Wireless will lease space on the pole for the placement of
twelve (12) antennas.
Although Verizon Wireless will build the replacement pole, the City will own it, of course.
Verizon Wireless has been a tenant of the City on two of the City's water towers for past several
years. This relationship has worked well, and the city's use of its water tower has not been altered
by the collocation. The same legal protections used at the City's water tower sites have been
written into the proposed Lease for the City's Civil Defense Pole. In this way, the City will benefit
from the use of a more structurally stable, steel pole for its siren (as well as any other use the City
determines to be suitable) and receive non-tax revenue at this site, while still allowing a collocated
use that does not interfere with the City's primary use of the site - the operation of its civil defense
SIren.
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City of Prior Lake
Collocation of Antennas Civil Defense Siren Pole
September 24,2004
Page 2
MO S S & BARNETT
A Professional Association
Pursuant to Verizon Wireless's collocation lease with the City, Verizon Wireless's antennas must
be installed and operated in a manner which does not cause interference or otherwise impair the
quality of the equipment being used on the Civil Defense Pole by the following higher priority
users: (1) the equipment of the City; and (2) public safety agencies including; but not limited to law
enforcement, fire, and ambulance services, that are not part of the City. Verizon Wireless will have
a separate lease from the owner of the Property for the placement of its equipment shelter. The
collocation of the antennas on the City's Civil Defense Pole and the construction of the accessory
equipment shelter will help meet the increased demand for wireless telephone service in Prior Lake.
The Wireless Phone System. Because the City is well acquainted with wireless service, we will
not go into great detail to explain the use and benefits of wireless services, although we should note
that fire and police departments and other public safety agencies use wireless telephones
extensively, as well. The system allows police and other emergency response agencies to conduct
private communication in the field. This can be important from the scene of a crime, serious car
accident, fire or other emergency. Immediate, direct communication with other specialized
agencies is often made using wireless phones when a relay through a dispatcher would be
cumbersome and might cause dangerous delays. Thus, even those who are not wireless phone
subscribers benefit from the ability of these agencies (as well as private sector companies) to have
reliable wireless service available to them. The wireless phone system operates on a specific set of
channels set aside by the Federal Communication Commission (FCC). The filtering of spurious
signals is very tightly controlled. As a result, there is no radio frequency interference caused by
these installations.
The Proposed Use. The proposed site is located on Property owned by Restan L.L.C. The parcel
is zoned R-I Low Density Residential. There is a golf course to the north and to the east of the
site. Wilds Parkway is to the west of the site. The Mdewakanton Sioux Community is to the south
of the site. The buildings currently located on the subject property are used as maintenance
facilities to support the adjacent golf course.
A. The Conditional Use Permit for the Antenna Collocation. Every cell site has two essential
elements: antennas and wireless telephone radio/switching equipment. The antennas will be
affixed to the City's replacement Civil Defense Pole at a tip height of approximately 65 feet. The
City's Water Department metering antenna, siren antenna, solar panel and transmitting/battery
box will be located on the Civil Defense Pole at approximately 22 feet. The top of the City's civil
defense siren will be at 70 feet.
The collocation of antennas on a structure is a conditional use in all use districts pursuant to City
Code ~ 1110.400. Antennas may be located in a residential use district as long as the antennas
are attached to a public structure and are limited to a height of 15 feet above the structure. * City
* Subject to the City Council approval, antennas may be placed 25 feet above a public structure if the applicant can
demonstrate that, by a combination of antenna design, positioning of the structure and/or screening, off-site views on
the antenna from adjacent properties are minimized. City Code 9 1110.503 (3)(C).
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City of Prior Lake
Collocation of Antennas Civil Defense Siren Pole
September 24,2004
Page 3
MO S S & BARNETT
A Professional Association
Code S 1110.503 (3)(a-b). In the present case, the City currently has a 50-foot public structure on
the Property. This wooden structure will be replaced with a new municipal civil defense structure,
and Verizon Wireless's antennas will project 15 feet above the current 50-foot height. Verizon
Wireless's antennas and cables will be painted to match the color of the City's new Civil Defense
Pole as required by City Code SIll 0.11 00 (1).
In addition, as required by City Code SIll 0.1500 (1), we have enclosed a letter from Verizon
Wireless's radio frequency engineer that documents what steps Verizon Wireless will take to avoid
interference with established public safety telecommunications. Moreover, pursuant to Verizon
Wireless's collocation lease with the City, Verizon Wireless has agreed that its antennas will not
interfere with the equipment of the City or public safety agencies including, but not limited to, law
enforcement, fire, and ambulance services, that are not part of the City.
Also, we understand that the City's Civil Defense Pole will be designed to support the City's
equipment, Verizon Wireless's collocation and two additional collocators. Of course, future
collocators will have' to obtain their own conditional use permits. A structural report cannot be
supplied at this time because the final design will be completed by the manufacturer of the City's
Civil Defense Pole and the exact manufacturer has not been retained due to the considerable cost of
ordering this type of pole. This information can be supplied at the time of the building permit
application, of course.
Section 1108.202 of the City Code provides the general standards that must be met for a
Conditional Use Permit. These standards are met as described below:
I. The use is consistent with and supportive of the goals and policies of the
Comprehensive Plan. The use will meet the goal of well-planned development
because, by collocating on the City's Civil Defense Pole, construction of a new
communications tower is avoided.
2. The use will not be detrimental to the health, safety, morals and general
welfare of the community as a whole. Wireless radio transmissions are
regulated by the FCC and do not impact the public health, safety or welfare.
Wireless telecommunication services serve to improve public health, safety and
welfare by providing a dependable means of communication in emergency
situations.
3. The use is consistent with the intent and purpose of the Zoning Ordinance
and the Use District in which the use is located. One of the purposes of the
ordinance is to encourage collocation of antennas on structures to reduce the
number of new towers needed to serve the community. Verizon Wireless
proposes to collocate its antennas on the City's Civil Defense Pole.
City of Prior Lake
Collocation of Antennas Civil Defense Siren Pole
September 24,2004
Page 4
MO S S & BARNETT
A Professional Association
4. The use will not have an undue adverse impact on governmental facilities,
services or existing or proposed improvements. The proposal will not interfere
with the City's existing or proposed uses. This is ensured by the terms of the
Lease between the City and Verizon Wireless.
5. The use will not have undue adverse impacts on the use and enjoyment of
properties in close proximity to the use. The proposed use will not injure or
detract from the use of neighboring properties or from the character of the
neighborhood because the anteIlI1as will be mounted on the City's Civil Defense
Pole, are visually unobtrusive and go unnoticed by the casual observer.
6. The use is subject to the design of site plans prepared by or under the
direction of a professional architect or engineer. The required site plans are
enclosed and were prepared by Design I, an architectural firm located in Edina,
Minnesota.
7. The use is subject to plans which illustrate the location of utilities and other
service facilities. The required plans are enclosed.
8. The use is subject to such other additional conditions which the City Council
may find necessary to protect the general welfare, public safety and
neighborhood character. Mr. Littlejohn, as the representative of Verizon
Wireless, will attend the public hearings to discuss any additional concerns of the
Planning Commission and City Council.
As explained above, Verizon Wireless believes its application for a Conditional Use Permit to
collocate its antennas on the City's Civil Defense Pole meets all applicable requirements.
Verizon Wireless respectfully requests to be placed on the meeting agenda for the Planning
Commission scheduled for October 25, 2004.
B. The Site Plan Review for the Accessory Equipment Shelter. Pursuant to City Code S
1110.1000, equipment shelters are permitted as an accessory use subject to the following
regulations:
1. An equipment shelter s.hall not exceed 336 square feet in area. The wireless
telephone radio/switching equipment will be housed in an unmanned II' 6" x 28'
(322 sq ft) equipment shelter at the base of the City's Civil Defense Pole.
2. Exterior building materials for the equipment building must be brick or
simulated brick. The equipment shelter will have an exterior that simulates a
brick appearance and is consistent with the surrounding architectural design.
Building elevations showing the design are enclosed.
City of Prior Lake
Collocation of Antennas Civil Defense Siren Pole
September 24,2004
Page 5
MO S S & BARNETT
A Professional Association
3.
Equipment shelters must meet the setbacks of the underlying use district.
The equipment shelter meets the setbacks of the underlying R-l use district,
which are 10ft. for the side and 25 ft. for the rear and front. City Code 9
1102.405.
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4. There shall be no outside storage of equipment or vehicles. All of the
equipment will be housed in the equipment shelter, and vehicles will not be stored
at the site.
5. The location and placement of the equipment shelter shall be subject to site
plan review. An application for site plan approval is enclosed.
In regard to the site plan approval, the base of the City's Civil Defense Pole and southern side of
the equipment shelter will be protected by a security fence. The security fence will consist of
materials and a design which are consistent with those utilized for fencing elsewhere within the
areas surrounding the Wilds Golf Course development. Coax cables will run from the equipment
shelter to the City's Civil Defense Pole. Landscaping at the site will be consistent with the
surrounding Wilds Golf Course Development and adjacent parcels. In order to prepare the site
for the shelter pad, only 258 square feet of sod will be disturbed. All of the sod will be replaced
except for 76 square feet. The existing grading will not be changed. One tree will be removed
which is allowed pursuant to City Code S 1107.2106. The equipment shelter will be built to
meet the requirements of the Zoning Ordinance, and a building permit will be obtained.
CONCLUSION
I hope this letter will serve to better explain our applications and to answer some of your
questions. If we can be of further assistance, please feel free to contact me at (612) 347-0274 or
my associate, Anthony Dorland at (612) 347-0258. We look forward to working with you to
provide better wireless phone service to the Prior Lake area.
Sincerely,
/~
~s D. Littlejohn
AAD/JDL
Enclosures
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