8.0. EDSR 02-13-2006Item # g_
MEMORANDUM
TO: Economic Development Authority
FROM: Scott Clark, Community Development Director
DATE: February 8, 2006
SUBJECT: Nextel Lease
At the present time the "City" (staff in conjunction with the City Council) has been
negotiating an agreement between Nextel and the City to construct a cell tower next to
the Public Safety Building (see attached). After a series of negotiations it was discovered
that since the EDA was the issuer of the lease purchase bond, on behalf of the City of Elk
River for financing the building, they will need to be a signatory on the Nextel lease since
they are the technical owners of the property. The City will also be a signer since some of
the property in question is not under the EDA title.
The actual business terms of the agreement are being negotiated outside of the EDA
review and the signature is being viewed as a simple legal necessity due to the City/EDA
ownership structure.
Recommendation
Authorize the EDA President and Vice President to sign the Nextel Lease based on the
future lease approval by the City Council.
S:\Commwtity Development\Scott Clark\2006 EDA memos\EDA Nextel.doc
Site: MN0289 / Otsego
larket: Chicago
COMMIJNICATIONSSlTE LEASE AGREEMENT (GROUND)
This COMMUNICATIONS SITE LEASE AGREEMENT ("Agreement") is dated as of 2005, by Nextel Wes[
Corp., a Delaware corporation ("Nextel" or "Tenant") and the F,conomic Development Authority for the City of Elk River a
Minnesota Dublic body politic and corporate and the Citv of Elk Rivcr a Minnesota municipal corpm rlimt ("Owner" or
Landlord ).
For One Dollar ($I.00) (SS.BOtF) paid to Owner, and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
t. Premises. Owner owns a parcel of land ("Land") located in the Citv of Elk River. County of Sherburne State of
Minnesota, commonly known as 13065 Orono Parkway. Elk River MN 55330 (APN/PID: 75-528-0305 & 75-537-0105). The
Land is more particularly described in Exhibit A annexed hereto. Subject to the provisions of Paragraph 2 below ("Effective
Date/Due Diligence Period"), Owner hereby leases to Nextel and Nextel leases from Owner approximately twenty five hundred
(2.500 / 50 X 50) square feet of the Land and all access and utility easements necessary or desirable therefor ("Premises"), as may be
described generally in Exhibit B annexed hereto.
2. Effective Date/Due Diligence Period. This Agreement shall be effective on the date of full execution hereof ("Effective
Date"). Beginning on the Effective Date and continuing until the Term Commencement Date as defined in Paragraph 3 below ("Due
Diligence Period"), Nextel shall only be permitted to enter the Land for the limited purpose of making appropriate engineering and
boundary surveys, inspections, and other reasonably necessary investigations and signal, topographical, geotechnical, structural and
environmental tests (collectively, "Investigations and Tests") that Nextel may deem necessary or desirable to determine the physical
condition, feasibility and suitability of the Premises. In [he even[ that Nextel determines, during the Due Di]igence Period, that the
Premises are not appropriate for Nextel's intended use, or if for any other reason, or no reason, Nextel decides not to commence its
~nancy of the Premises, then Nextel shall have the right to terminate this Agreement without penalty upon written notice to Owner at
..ny time during the Due Diligence Period and prior to the Term Commencement Date. Owner and Nextel expressly acknowledge and
agree that Nextel's access to the Land during this Due Diligence Period shall be solely for the limited purpose of performing the
Investigations and Tests, and that Nextel shall not be considered an owner or operator of any portion of the Land, and shall have no
ownership or control of any portion of the Land (except as expressly provided in this Paragraph 2), prior to the Term Commencement
Date.
3. Term. The term of Nextel's tenancy hereunder shall commence upon the start of construction of the Tenant Facilities (as
defined in Paragraph 6 below) or ?°" ~~n"=„~-..ittety-F90)-du~ws one hundred twenty (1201 davs following the Effective
Date, whichever first occurs ("Term Commencement Date") and shall terminate on the fifth anniversary of the Term
Commencement Date ("Term") unless otherwise terminated as provided herein. Tenant shall have the right to extend the Term for
five (5) successive five (5) year periods ("Renewal Terms") on the same terms and conditions as set forth herein. This Agreement
shall automatically be extended for each successive Renewal Term unless Tenant notifies Landlord of its intention not to renew with a
three (3) month notice prior to commencement of the succeeding Renewal Term.
4. Rent. Tenant shall nay to Landlord as rent (-5-1-R8900) Twelve'Fhousand and 00/I00 Dollars ($l~ 000 00} per annum
("Rent"l. Rent for the first vear of the Agreement shall be paid within fifteen (15) davs of the Term Commencement Date and
for subsequent years shall be paid on each anniversary of the Term Commencement Date If Owner terminates this
Agreement during the Term or any Renewal Term prepaid Rent for the unused portion of that vear shall be refunded to
T=rm s; sal bo=~,r~d-. Rent shall be payable to Landlord at 13065 Orono Parkwav, Elk River. MN 55330; Attention: City
Administrator. All of Tenant's monetary obligations set forth in this Agreement are conditioned upon Tenant's receipt of an
accurate and executed W-9 Form from Landlord. Rent shall "°'~-R,~.°-~~s~a on each anniversary of the Term Commencement Date by an
amount equal to tree-four percent (34%) of [he Rent [hen in effect for the previous year.
5. Use. From and after the Term Commencement Date, the Premises may be used by Tenant for any lawful activity as
pffroved_{>v_.t"° ~:«_ „r .; n, o~ .., ~. ~eEestiir+v. in connection with [he provision of communications
services so long as such use does not conflict with the zoning ordinances of the City of Elk River, and Tenant shall have the
ongoing right to perform such Investigations and Tests as Tenant may deem necessary or desirable. Landlord agrees to cooperate with
Tenant, at no out of pocket expense to Landlord, in tnakingproviding materials necessarv to make applications for and obtaining all
licenses, permits and any and all other necessary approvals that may be required For Tenant's intended use of the Premises.
6. Facilities: Utilities: Access.
(a) Tenant is required to submit and process the necessarv land use applications as required by Elk River Citv
Code Chanter 30 and receive approvals from the City of Elk River City Council prior to commencement of construction of the
'T'enant Facilities After receivin the appropriate approvals and commencing the fin-al
Agreement, Tenant has the right to construct, erect, maintain, test, replace, remove, operate and upgrade on the Premises
communications facilities, including without limitation an antenna tower or pole and foundation, utility lines, transmission lines, an air
conditioned equipment shelter(s), electronic equipment, transmitting and receiving antennas, microwave dishes, antennas and
equipment, a power generator and generator pad, and supporting equipment and structures therefor ("Tenant Facilities"). In
connection therewith, Tenant has the right to do all work necessary to prepare, maintain and alter the Premises for Tenant's business
operations and to install transmission lines connecting the antennas to the transmitters and receivers. All of Tenant's construction and
installation work shall be performed at Tenant's sole cost and expense and in a good and workmanlike manner. Tenant shall hold title
to the Tenant Facilities and all of the Tenant Facilities shall remain Tenant's personal property and are not fixtures. Tenant has the
right to remove the Tenant Facilities at its sole expense on or before the expiration or earlier Termination of this Agreement, and
Tenant shall repair any damage to the Premises caused by such removal. Upon the expiration or earlier termination of this Agreement,
Tenant shall remove the Tenant Facilities from the Land, but is not required to remove any foundation more than one (I) foot below
grade level. i.... i,° ,.. _,. 'r,.,,,..,. ,.i°,.,...,, ,. ,.,.......:°. .", .>......, ~.., .. •r,... ... ~ ........ ...... ..:.. .............~,
~ase.,.,~,.~,~,..-~ .~,--.~,~,.t~hal. e-4 Ftewe~
unless-F,a~dlorEf-uu•Ei#'ies-,'f'eua u~t-f#3u.l...i k -mast-de-se;
(b) Tenant shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company.
,enant shall have the right to draw electricity and other utilities from the existing utilities on the Land or obtain separate utility service
.rpm any utility company that will provide service [o the Land. In connection Therewith, Landlord hereby grants to the local
telephone, power and utility companies (as appropriate) non-exclusive rights to locate, construct, install, operate, maintain, repair,
replace, alter, extend, and/or remove cables and lines on, over, under and across a portion of Landlord's Property as necessary or
desirable therefor. Landlord agrees to sign such documents or easements, a[ no cost to Tenant or the utility companies, as may be
required by said utility companies to provide such service to the Premises. Any easements necessary for such power or other utilities
will be at a locations re^°^°^"~"'o,~-,.~ selected at Landlord's sole discretion and acceptable to the servicing utility company.
(c) Tenant, Tenant's employees, agents and contractors shall have access to the Premises without notice to Landlord
twenty-four (24) hours a day, seven (7) days a week, at no charge. Landlord grants to Tenant, and Tenant's agents, employees and
contractors, anon-exclusive right and easement for pedestrian and vehicular ingress and egress across the Land, ^^'' °~^^'' °~~.n..,^a^a
easementata~-bain the location described geneKa}}y in Exhibit B.
(d) Landlord shall maintain all existing access roadways from the nearest public roadway to the entra+aee-te-the Premises
in a manner sufficient to allow pedestrian and vehicular access at all times under normal weather conditions. Landlord shall be
responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by Tenant's use of such
roadways. ?'?~t°.?:;:~:;, .d~^° ~".,.~.o=.~::.g; Tenant tray shall construct an access road from the point where the existing asphalt road
ends to the Premises ("Access Road") as shown on Exhibit B, across the Land as more fully described in Exhibit B,~,°Te;&;,r;tia.°^~"'•
Tenant shall be responsible for
maintaining and repairing such Access Road until the expiration or earlier termination of this Agreement, at its sole expense, less
reasonable wear and tear or loss by casualty or other causes beyond Tenant's reasonable control. Landlord shall be re°~°°°~"~l~F~r--~.°°}
^° '-°^'~-°, °°a °"^" "° responsible for maintaining and repairing the Access Road from and after the expiration or earlier termination of
this Agreement, which costs shall be Landlord's sole responsibility.
(el ~)R~:.,° ........,. •r.,,s .."., r .,..a~ ..`a.~.~."~'r3t2 -EirmHtnFtlt-~`-}'=tttei'-gettC'V
~s`ste "v r z' 't' ' q a~ no rental enct to T_nrul' ~ 'r ^t °ti^n ° r,.-+ti„~~ ~~st~~~
~~ ~• *~ r n t t ti t a, r .,. c...,an~:°°. Toro t zro ~ t in> t<ro Lessor shall be allowed
to install ~~ antennas and required cables and wiring on L.essee's antenna tower at the
one hundred twenty Q20') toot level for use in Landlord's primary business activities ("Lessm~ N'aeilities"). Lessor shall be
esponsible for installing, repairing, maintaining, modifying and removing its ¢yuipment subject to l.,essee's approval at
Lessor's sole expense. Lessor shall pay for the utilities it consumes in its operation of the Lessor Facilities at the rate charged
by the servicing utility company. Landlord shall operate the Landlord Facilities in a manner that will not cause interference
to Tenant and its tenants, if any. All operations by Landlord shall be in compliance with all FCC requirements.
Interference.
(a) Tenant shall operate the Tenant Facilities in compliance with all Federal Communications Commission ("FCC")
requirements including those prohibiting interference to communications facilities of Landlord or other lessees or licensees of the
Land, provided that the installation and operation of any such facilities predate the installation of the Tenant Facilities.
(b) Subsequent to the installation of the Tenant Facilities, Landlord will nut, and will not permit its lessees or
licensees to, install new equipment on or make any alterations to the Land or property contiguous thereto owned or cmrtrolletl
by Landlord, if such modifications are likely to cause interference with Tenant's operations. In the event interference occurs,
Landlord agrees to nse best efforts W eliminate such interference in a reasonable time period. ' ^^'"^-'"° °^~' -° ^~^'~ ^ ~«`~
8. Taxes. If personal property taxes are assessed, Tenant shall pay any portion of such taxes directly attributable to the
Tenant Facilities. Landlord shall pay when due all real property taxes, assessments and deferred taxes on the Land. Except as
provided immediately below, Landlord shall pay all real property taxes, assessments and deferred tares nn fhe Land. If any
increase to Landlm~d's real property taxes is the direct result of Tenant's improvements on the Premises, then Tenant shall
reimburse the Landlord that proportionate share of such tax increase provided that as a conditimi of Tenant's obligation to
pay such tax increases: (i.) Landlord provides to Tenant the documentation from fhe taxing authority, reasonablyy acceptable
to Tenant, indicating that the increase is due to Tenant's improvements, and (iiJ upon written request by Tenant, Landlord
tiles a timely protest with the appropriate taxing authority, and consents to Tenant's intervention and prosecution of the same
(the cost of such appeal to be borne by the parties on a pro rata basis).
~.amdlord and Tenant shall cooperate with each other in the protest of any such assessment by (i.} providing each other with
information regarding the relative valuation of (heir property, and (ii.) allowing each other to participate in any proceeding
related to the lac protest.
Nothing in this paragraph shall be construed as limiting either party's right Yo contest, appeal or challenge any tax assessment
9. Waiver of Landlord's Lien.
(a) Landlord waives any lien rights it may have concerning the Tenant Facilities, all of which are deemed Tenant's
personal property and not fixtures, and Tenant has the right to remove the same at any time without Landlord's consent.
(b) Landlord acknowledges that Tenant has entered into a financing arrangement including promissory notes and
financial and security agreements for the financing of the Tenant Facilities ("Collateral") with a third party financing entity (and may
in the future enter into additional financing arrangements with other financing entities). [n connection therewith, Landlord (i) consents
to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the
Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that
such Collateral may be removed at any time without recourse to legal proeeediugs.
10. Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice as follows:
(i) by either party upon a 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, except that this Agreement shall not be terminated if the default cannot reasonably be cured within
such sixty (60) day period and the defaulting party has commenced to cure the default within such sixty (60) day period and diligently
pursues the cure to completion; provided that the grace period for any monetary default is ten (10) days from receipt of written notice;
or (ii) by Tenant if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of
the Tenant Facilities; or (iii) by Tenant if Tenant is unable to occupy and utilize the Premises due to an action of the FCC, including
ithout ]imitation, a take back of channels or change in frequencies; or (iv) by Tenant if any environmental report for the Land reveals
the presence of any Hazardous Material after the Term Commencement Date; or (v) by Tenant if Tenant determines that the Premises
are not appropriate for its operatiops for economic or technological reasons, including, without limitation, signal interference; or (vi)
y Tenant if the Landlord fails to deliver to Tenant an executed memorandum of agreement or non-disturbance and attornment
agreement pursuant to Paragraphs 19(g) and (h) below.
11. Destruction or Condemnation. IF the Premises or Tenant Facilities are damaged, destroyed, condemned or transferred in
lieu of condemnation, Tenant may elect to terminate this Agreement as of the date of the damage, destruction, condemnation or
transfer in lieu of condemnation by giving notice to Landlord no more than forty-five (45) days following the date of such damage,
destruction, condemnation or transfer in lieu of condemnation. If Tenant chooses not to terminate this Agreement, Rent shall be
reduced or abated in proportion to the actual reduction or abatement of use of the Premises.
12. Insurance.
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(a) Workers' Compensation. The Tenant must maintain Workers' Compensation insurance in compliance with
all applicable statutes The policy shall also provide Employer's Liability coveraee with limits of not less than $500 000 Bodily
Iniurv each accident, $500 000 Bodily iniurv by disease policy limit and $500 000 Bodily Iniurv by disease each employee
fib) Ceneral Liability. The Tenant must maintain ap occurrence form comprehensive eeneral liability coveraee
Such coveraee shall include, but not be limited to bodily iniurv property damage -- broad form and personal iniurv #2rr--the
lurtards-of--Rrem#sesJ~t;~r~ti;,:.broad form contractual independent contractors and products/completed operations
(c) The Tenant must maintain aforementioned comprehensive eeneral liability covers a with limits of liability
not less than $1,000,000 each occurrence: $1.000,000 personal and advertisin iniurv: $2,000,000 eeneral a reeate, and
$2 000 000 products and completed operations aeereeate These limits may be satisfied by the comprehensive eeneral liability
coveraee or in combination with an umbrella or excess liability policy provided coveraee afforded by the umbrella or excess
policy is no less than the underlying comprehensive eeneral liability covers es
~) Automobile Liability. The Tenant must carry Automobile Liability coveraee Covers a shall afford total
liability limits for Bodily Iniurv Liability and Property Dama a Liability in the amount of $1 000 000 per accident The
liability limits may be afforded under the Commercial Policy or in combination with an Umbrella or Excess Liability Policy
provided coverages afforded by the Umbrella Excess Policy are no less than the underlvin Commercial Auto Liability
coveraee.
(el coveraee shall be provided for Bodily Iniurv and Property Damage Tor the ownership use maintenance or
operation of all owned, non-owned and hired automobiles.
[fj The Commercial Automobile Policy shall include at least statutory personal iniurv protection uninsured
+otorists and underinsured motorist coverages
(¢) Tenant Property Insurance. The Tenant must keep in force Burin the term and any renewals of the Lease a
policy covering damages to its property at [he Leased Premises The amount of covera a shall be sufficient [o replace the
damaged property. loss of use and comply with any ordinance or law requirements
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(h) Additional Insured -Certificate of Insurance The Tenant shall provide prior to tenancy evidence of the
required insurance in the farm of a Cer[ifcate of Insurance issued by a compapv (rated A- or better) by Best Insurance Guide
licensed to do business in the state of Minnesota which includes all covera es required in this Para raph t 1 Tenant will name
Landlord as an Additional Insured on the General Liability and Commercial Automobile Liability Policies Tenant a reel to
use its best efforts to provide ten (lll) days written notice to Landlord if the covera a is canceled, non-renewed, m~ materially
changed.
13. Waiver of Subrogation. Landlord and Tenant release each other and their respective principals, employees, representatives
and agents, from any claims for damage to any person or to the Land or the Premises or to the Tenant Facilities or any other property
[hereon caused by, or that result from, risks insured against under any insurance policies carried by the parties and in force at the time
of any such damage. Landlord and Tenant shall cause each insurance policy obtained by them to provide that the insurance company
waives all right of recovery by way of subrogation against the other in connection with any damage covered by any policy. Neither
Landlord nor Tenant shall be liable to the other for any damage caused by any of the risks insured against under any insurance policy
required by Paragraph 12.
,4. Liability and Indemnity. Landlord and Tenant shall each indemnify, defend and hold [he other harmless from and against
all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses)
(collectively "Losses") arising from the indemnifying party's breach of any term or condition of this Agreement or from the
negligence or willful misconduct of the indemnifying party or its agents, employees or contractors in or about the Land. The duties
described in this Paragraph 14 shall apply as of the Effective Date of this Agreement and survive the termination of this Agreement.
15. Assignment and Subletting. Tenant may assign this Agreement, or sublet or license the Premises or any portion thereof,
which shall be evidenced by written notice thereof to Landlord within a reasonable period of time thereafter. Upon assignment,
Tenant shall be relieved of all future performance, liabilities, and obligations under this Agreement, provided that the assignee
assumes all of Tenant's obligations herein, ugd-tIr^•~~r.o ^°'~.~tfrg=Daunt ~'^r~'*° ••^der-tgis-p^-;~^~,.F Landlord may assign
this Agreement, which assignment may be evidenced by written notice to Tenant within a reasonable period of time thereafCer,
provided that the assignee assumes all of Landlord's obligations herein, including but not limited to, those set forth in Paragraph 9
("Waiver of Landlord's Lien") above. This Agreement shall run with the Land and shall be binding upon and inure to the benefit of
the parties, their respective successors, personal representatives, heirs and assigns. Notwithstanding anything to the contrary
contained in this Agreement, Tenant may assign, mortgage, pledge, hypothecate or otherwise transfer without notice or consent its
interest in this Agreement to any financing entity, or agent on behalf of any financing entity to whom Tenant (i) has obligations for
borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments,
or (iii) has obligations under or with respect [o letters of credit, bankers acceptances and similar facilities or in respect of guaranties
thereof.
16. Warranty of Title and OuieY Eniovment. Landlord warrants that: (i) Landlord owns the Land in fee simple, has rights of
access thereto from the nearest public roadway, which Tenant is legally permitted to use, and the Land and access rights are free and
clear of all liens, encumbrances and restrictions except those of record as of [he Effective Date; and (ii) Landlord covenants and agrees
with Tenant that Tenant may peacefully and quietly enjoy the Premises and such access thereto, provided that Tenant is not in default
hereunder after notice and expiration of all cure periods.
7. Repairs. Tenant shall repair any damage to the Premises or Land caused by the a Tenant.
Except as set forth in Paragraph 6(a) above, upon expiration or termination hereof, Tenant shall repair the Premises to substantially the
condition in which it existed upon start of construction, reasonable wear and tear
~senaH4e-EentreF excepted.
18. Hazardous Material.
(a) As of the Effective Date of this Agreement: (1) Tenant hereby represents and warrants that it shall not use, generate,
handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Land in violation of any Environmental Law
(as defined below), and (2) Landlord hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous
Material located iu, on, under, upon or affecting the Land in violation of any Environmental Law; (ii) no notice has been received by
or on behalf of Landlord from, and Landlord has no knowledge that notice has been given to any predecessor owner or operator of the
Land by, any governmental eutity or any person or entity claiming any violation of, or requiring compliance with any Environmental
Law for any environmental damage (or the presence of any Hazardous Material) in, on, under, upon or affecting the Land; and (iii) it
will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or
affecting the Land in violation of any Environmental Law.
(b) Without limiting Paragraph 14, Landlord and Tenant shall each indemnify, defend and hold [he other harmless from
and against all Losses (specifically including, without limitation, attorneys', engineers', consultants' and experts' fees, costs and
expenses) arising from (i) any breach of any representation or warranty made in [his Paragraph 18 by such party; and/or (ii)
environmental conditions or noncompliance with any Environmental Law (as defined below) that result, in the case of Tenant, from
operations in or about the Land by Tenant or Tenant's agents, employees or contractors, and in the case of Landlord, from the
ownership or control of, or operations in or about, the Land by Landlord or Landlord's predecessors in interest, and their respective
agents, employees, contractors, tenants, guests or other parties. The provisions of this Paragraph 18 shall apply as of the Effective
Date of this Agreement and survive termination of this Agreement.
(c) "Hazardous Material" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated
substances, pollutants or contaminants or terms of similar import, as such terms are defined in any Environmental Law, and shall
include, without limitation, any petroleum or petroleum products or by-products, flammable explosives, radioactive materials,
sbestos in any form, polychlorinated biphenyls and any other substance or material which constitutes a threat [o health, safety,
,,roperty or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or
regulated by any Environmental Law.
(d) "Environmental Law" means any and all present or future federal, state or local laws, rules, regulations, codes,
ordinances, or by-laws, and any judicial or administrative interpretations thereof, including orders, decrees, judgments, rulings,
directives or notices of violation, that create duties, obligations or liabilities with respect to: (i) human health; or (ii) environmental
pollution, impairment or disruption, including without limitation, laws governing the existence, use, storage, treatment, discharge,
release, containment, transportation, generation, manufacture, refinement, handling, production, disposal, or management of any
Hazardous Material, or otherwise regulating or providing for the protection of the environment.
19. Miscellaneous.
(a) This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers,
negotiations and other agreements concerning the subject matter contained herein. Any amendments to [his Agreement must be in
writing and executed by both parties.
(b) Both parties represent and warrant that their use of the Laud and their real and personal property located thereon is
in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any competent government
authority.
(c) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of [his
Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be
affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
(d) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the
respective parties.
(e) Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt
;quested, or reliable overnight courier to the address of the respective parties set forth below:
Landlord:
City of Elk River
13065 Orono Parkway
Elk River. MN 55330
Attn: City Administrator
Phone: 763-635-1000
Tenant:
Nextel West Corp.
400 West Grand Avenue
Elmhurst, Illinois 60126
Attn: Senior Manager Site Development
Phone: (630)379-5700
With a copy to:
Sprint
2001 Edmund Halley Drive
Reston, VA 20191-3436
Second Floor, Mail Stop 2E225
Attn: Contracts Manager -Legal
Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other party. All notices
hereunder shall be deemed received upon actual receipt or refusal to accept delivery.
(t) This Agreement shall be governed by the laws of the State of Minnesota.
(g) Landlord agrees to execute and deliver to Tenant a Memorandum of Agreement in the form annexed hereto as
Exhibit C and acknowledges that such Memorandum of Agreement will be recorded by Tenant in the official records of the County
where the Land is located.
(h) In the event the Land is encumbered by a mortgage or deed of trust, Landlord agrees to obtain and deliver to Tenant
an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or deed of trust in a recordable
form reasonably acceptable to both parties.
(i) Landlord agrees to fully cooperate with Tenant (including obtaining and/or executing necessary documentation) to
clear any outstanding title issues that could adversely affect Tenant's interest in the Premises created by [his Agreement.
Q) In any case where the approval or wnsent of one party hereto is required, requested or otherwise to be given under
this Agreement, such party shall not unreasonably delay or withhold its approval or consent.
(k) Each of the parties hereto represent and warrant that they have the right, power, legal capacity and authority to enter
into and perform their respective obligations under this Agreement.
(I) Both parties took part in the negotiation of this Agreement and agree that legal concepts
intended to construe the Agreement against the drafter will not apply against either party.
(m) In the event of any breach or default by either party, the other party shall be entitled to all rights and remedies
provided for in this Agreement and/or available at law, in equity, by statute or otherwise, all of which rights and remedies shall be
cumulative (and not exclusive).
(n) The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the
scope or intent of any provision of this Agreement.
(o) All Recitals set forth above, and all Riders and Exhibits annexed hereto, form material parts of this Agreement and
are hereby incorporated herein by this reference.
(p) This Agreement may be exew[ed in duplicate counterparts, each of which shall be deemed an original.
20. Supplier Diversity. Nextel is committed to equal employment and vendor diversity. As part of this commitment, it is the
olicy of Nextel that small business concerns, veteran-owned small business concerns, HUBZone small business concerns, women-
owned small business concerns, small disadvantaged business concerns (including 8(a) business concerns) and historically black
colleges and universities and minority institutions ("Diverse Suppliers," as further defined below) shall have the maximum practicable
opportunity to participate in performance of contracting between Nextel and its vendors. The term "Diverse Supplier(s)" shall mean
and be defined as set forth in Federal Acquisition Regulation Part 19 and 13 C.F.R. Part 121. In addition, "Historically black colleges
and universities," as included in the definition of "Diverse Suppliers" for purposes of this Agreement, shall mean and include
instim[ions determined by the Secretary of Education to meet the requirements of 34 C.F.R. Section 608.2; any nonprofit research
institution that was an integral part of such a college or university before November 14, 1986; and "Minority institutions," as included
in the definition of "Diverse Suppliers" for purposes of this Agreement, shall mean institutions meeting the requirements of Section
1046(3) of the Higher Education Act of 1965 (20 U.S.C. §1135d-5(3)); and also Hispanic-serving institutions as defined in Section
316(6)(1) of such Act (20 U.S.C. §1059c(b)(1)). Landlord shall confirm in the space below whether or not Landlord reasonably
believes it qualifies as a Diverse Supplier.
21. Ownership of'I'ower. Upon the expiration or earlier termination of this A>reement Landlord will notify Tenant in
writing ("Landlord's Notice"1 of its desire to keen the Tower at least Chitty (301 days but no more Chan forty-five (45) days
before the expiration m• termination of the Agreement. Within sixty (60) days after Tenant's receipt of Landlord's Notice
Tenant will inform Landlord in writing ("Tenant's Response) as to whether Landlord may keen the lower or whether Temmt
will remove the Tower, but replace it with a substantially similar tower in terms of hei ht and appearance (the "Replacement
Tower") that Landlord may l:cep. In the event that Tenant elects to install a Replacement Tower such invhtllation shall be
completed within one hundred eighty (1S0) days after Tenant's Response and before the removal of the existin Tower begins
Landlord shall accent and take title to the Tower or Replacement Tower "as-is "without warranty or representation express
or implied, of any kind except any warm factu rer's wan~anty if available and t andlord shall be solely responsible for the
repair and maintenance of the'Tower or 12cplacemept Tower. Notwithstanding the foregoing the Tower does not include'mv
transmitting and receiving antennas microwave dishes transmission lines cables generators equipment shelters electronic
~ipment air conditioning units or any egpipment of any kind whatsoever contained in the eouinmept shelter all of which
will remain Tenant's personal property as set forth in Paragraph 9 f Waiver of Landlord's Lient herein.
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