HomeMy WebLinkAbout2979FDH VELOCn-EL
CMaiNCCRINO INNOVATiON
1701 American Blvd E
Suite 16
Bloomington, MN 55425
May 4th, 2017
CityofEdina
Attn: Tim Barnes, Facilities Manager
4801 West 50th Street
Edina,MN 55424
952.826.0305
RE: AT&T telecommunications site located at 7525 Braemar Blvd., Minneapolis, MN 55439
AT&T Site Name: Braemar Park
AT&T Site Number: 12564768
Dear Mr. Barnes,
Enclosed please find two original, partially executed, temporary easement agreements for signature.
Please have these signed and notarized at your earliest convenience. Please retain one original
document for your file, and return one fully executed original document to our offices. I have enclosed
a pre-paid FedEx label for that purpose.
Should you have questions or concerns, please reach out to the site acquisition agent for this project:
DaveTrost
815.403,6851
dave.trost@fdhvelocitel.com
In addition to mailing the original back to our office, please send an electronic copy of the fully executed
document to site acquisition agent listed above.
Sincerely,
Nancy Benver
Lease Administrator
1701 American Boulevard East
Suite 16
Bloomington, MN 55425
952.944.1858ext.l36
952.944.1506
nancy.benver@fdhvelocitel.com
FDH Velocltel, Inc. | 952.944.1858 | www.fdhvelocitel.com
TEMPORARY EASEMENT AGREEMENT
THIS TEMPORARY EASEMENT AGREEMENT ("Agreement") dated as of the
day of _, 2017, by and between the CITY OF EDINA, a Minnesota
municipal corporation ("Grantor") and NEW CINGULAR WIRELESS PCS, LLC, a Delaware
limited liability company, whose mailing address is 575 Morosgo Drive NE, Atlanta, GA 30324
("Grantee").
RECITALS
WHEREAS, Grantor and County of Hennepin, State of Minnesota ("County") and the
Metropolitan Radio Board, a political subdivision, or its successor and assigns, as provided by law
("Board") (the County and the Board are hereinafter collectively referred to as the "Lessee"),
entered into a "Lease Agreement" commencing on September 1, 1999, for a 100 foot by 100 foot
parcel of land owned by the Grantor ("County Site"), legally described and shown on Exhibit A
attached to the Lease Agreement; and
WHEREAS, the Lessee constructed a county-wide public safety radio communication
system on the County Site including, but not limited to, a 185 foot self-supporting radio
communication tower ("Tower") as shown on Exhibit B attached to the Lease Agreement ("Site
Plan"); and
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WHEREAS, the Lessee was granted the right under the Lease Agreement to sublease
unused capacity on the Tower and the County Site for commercial wireless users subject to the
terms, covenants and conditions of the Lease Agreement; and
WHEREAS, the County and the Grantee entered into "Antenna Site Use Agreement"
effective as of April 22, 2014 ("Antenna Site Agreement") wherein the Grantee was granted the
right to use certain space on the Tower and space within the County Site as set forth in Exhibit A
attached to the Antenna Site Agreement (hereinafter referred to as the "Grantee's Premises"); and
WHEREAS, the Grantee desires to obtain a ten foot (10') easement over the Grantor's
property which ten foot (10') easement is legally described and shown in Exhibit "A" attached
hereto and made a part hereof (hereinafter referred to as "Easement Area") for the sole purpose of
memorializing the installation and operating of a 1 /2" inch tn-duct conduit for Grantee's sole use
("Grantee's Conduit") and for the pmpose of installing and operating micro fiber within the
Grantee's Conduit for Grantee's sole use (" Grantee's Micro Fiber"); and
WHEREAS, Grantor is agreeable to granting a non-exclusive easement over the Easement
Area subject to the terms, covenants and conditions of this Agreement.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Easement Area. Subject to the terms, covenants and conditions of this
Agreement, the Grantor hereby grants to the Grantee, a non-exclusive easement over, under and
through the Easement Area for the permitted uses as hereinafter described.
2. Consideration for Easement. As and for consideration of the Grantor granting
the Grantee the non-exclusive Easement over the Easement Area, the Grantee shall pay the
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Grantor Nine Thousand Five Hundred and No/100 Dollars ($9,500.00) upon the Grantor signing
this Agreement.
3. Term. This Agreement shall be for an initial term beginning on the date executed
by the Grantor and ending on April 21, 2024 ("Initial Term"). After the Initial Term and any
subsequent Renewal Terms as defined below, unless written notice of intent not to extend the
Agreement is provided by either party to the other party at least ninety (90) days prior to the
expiration date of the then current Term, as hereinafter defined, this Agreement shall be
automatically renewed up to three (3) times for additional five (5) year terms, (each such term
being referred to as "Renewal Term"), unless this Agreement is terminated earlier pursuant to the
terms and conditions of this Agreement. The Initial Term and the Renewal Term(s) are
collectively referred to as the "Term."
4. Permitted Use. The Grantee may use the Easement Area for the sole purpose of
installing, removing, replacing, maintaining and operating Grantee's Conduit and Grantee's
Micro Fiber, for Grantee's sole use within the Easement Area as shown in Exhibit "A".
5. Installation, Construction, Repair, and Maintenance.
Grantee may not add, change or alter Grantee's Conduit or Grantee's Micro Fiber from
that set forth and/or shown on Exhibit "A" or described herein, or install any additional conduit
or microfiber without the prior written approval of the Grantor, which approval shall not be
unreasonably withheld, conditioned or delayed. Provided, however, such approval shall not be
required for Grantee to repair or replace Grantee's Micro Fiber or add additional Micro Fiber to
be used solely by Grantee. Grantee agrees to reimburse Grantor for all reasonable costs incurred
by the Grantor in connection with any alteration or modification of, or addition to, Grantee's
Conduit and/or Grantee's Micro Fiber pursuant to this paragraph including, but not limited to,
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plan review, structural review, site meetings, inspection time, and as-built updating as a result of
Grantee's changes, including attorneys' fees for drafting and and/or reviewing documents.
Grantee shall be responsible for the repair and restoration of any damage done by
Grantee, its employees, agents or contractors during the installation, maintenance, or
modification of Grantee's Conduit, Grantee's Micro Fiber or other equipment within the
Easement Area or any of Grantor's other property.
Grantee will not allow any mechanics or material liens to be placed against the Easement
Area or any of Grantor's other property as a result of any work or material provided to Grantee
under the terms of this Agreement.
6. Intentionally Deleted.
7. Grantee's Conduit and Equipment. Grantee has installed Grantee's Conduit
and related equipment, according to Exhibit "A".
Grantee's Conduit, Grantee's Micro Fiber and any related equipment (collectively
"Grantee's Equipment") installed in the Easement Area and/or Grantee's Premises is installed
underground except as shown on Exhibit "A" and within the Grantee's Easement Area and
Grantee's Premises according to the terms of this Agreement and Grantor's applicable code,
rules and regulations and all state codes, rules and regulations. Grantee's Conduit has been
directionally bored and adjusted in the field to avoid potential impact to any existing trees and
"hand dug" in any area or location where there are numerous existing utilities. The exact
location of Grantee's Conduit is depicted on Exhibit 'A". The Grantee agrees that locates were
done prior to installation of the conduit.
It shall be the responsibility of Grantee, its agents, contractors and/or subcontractors at
Grantee's sole cost and expense to contact Gopher One Call, Grantor, Lessee, and all other
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parties occupying the Easement Area, for locate requests prior to any construction, installation,
maintenance or modification of the Grantee's Conduit and Grantee's Micro Fiber on the
Easement Area.
8. Default.
a. Any of the following occurrences, conditions, or acts shall be deemed a "Default"
under this Agreement: If either party fails to observe or perform its obligations under this
Agreement and does not cure such failure within sixty (60) days from its receipt of written notice
of breach from the other party. If the default may not be reasonably cured within the sixty (60)
day period, the defaulting party shall have such extended period as may be required beyond the
sixty (60) days if the nature of the cure is such that it reasonably requires more than sixty (60)
days, and the defaulting party commences the cure within the sixty (60) day period, and
thereafter continuously and diligently pursues the cure to completion.
b. Except as expressly limited hereby, Grantor and Grantee shall have such remedies
for the default of the other party hereto as may be provided at law or equity following written
notice of such default and failure to cure the default within the applicable time allowed to cure
under the terms of this Agreement.
9. Termination.
a. Except as otherwise provided herein, this Agreement may be terminated, without
penalty or further liability, as follows:
i. by either party upon thirty (30) days written notice after the termination of the
cure periods provided in Section 8.a. or 8.b. above;
ii. by Grantee upon ninety (90) days' written notice by Grantee to Grantor if Grantee
is unable, after filing all necessary applications for obtaining or retaining of any
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license, permit, or other Governmental Approval and making all reasonable
efforts and using due diligence to comply with all requirements necessary, to
obtain or maintain any license, permit, or other Governmental Approval necessary
for the installation and/or operation of the Grantee's Communication Facility or
Grantee's business;
iii. by Grantee upon ninety (90) days' written notice if the Grantee's Conduit and
Grantee's Micro Fiber becomes unacceptable under Grantee's design or
engineering standards for Grantee's use;
iv. by Grantor if Grantee fails to cure within ninety (90) days of written notice by
Grantor to Grantee that Grantor has determined that Grantee has failed to comply
with any applicable ordinance, or state or federal law, or any conditions attached
to Government Approvals granted thereunder, after a public hearing before the
Grantor's Council;
v. by Grantor after the Initial Term upon one hundred eighty (180) days written
notice if its Council decides to sell or redevelop the Easement Area and/or
discontinue use of the Easement Area for public or governmental purposes in a
manner that is inconsistent, in Grantor's sole opinion, with Grantee's continued
use of the Easement Area;
vi. by Grantor if the Lease Agreement between the Grantor and Lessee is terminated
pursuant to the terms of the Lease Agreement;
vii. by Grantor or Grantee if the Antenna Site Agreement between Grantee and
County is terminated for any reason.
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b. Notice of Termination. The parties shall give notice of termination of this
Agreement, setting forth the "Termination Date" in accordance with Section 15 of this
Agreement.
c. Removal of Grantee's Equipment. The Grantee shall remove Grantee's Conduit
and Grantee's Micro Fiber and all of Grantee's other equipment (if any) in the Easement Area
within sixty (60) days of the end of the Initial Term, or the end of any Renewal Term, if
applicable. Upon termination of this Agreement for any other reason, Grantee shall, within
ninety (90) days of "Grantor's Notice" as hereinafter provided, remove Grantee's Conduit and
Grantee's Micro Fiber from the Easement Area and restore the Easement Area to a condition. as
close as possible to its original condition, reasonable wear and tear and loss by casualty or other
causes beyond Grantee's control excepted.
10. Insurance. Grantee agrees to obtain and maintain during the term of this
Agreement the insurance coverage set forth in Exhibit "B".
11. Defense and Indemnification. Grantee agrees to defend, indemnify, and hold
harmless Grantor and its elected officials, officers, employees, agents, and representatives, from
and against any and all claims, costs, losses, expenses, demands, actions, causes of action, or
judgments, including reasonable attorneys' fees and other costs and expenses of litigation, which
may be asserted against, or incurred by, Grantor, or for which the Grantor may be liable to the
extent resulting from Grantee's activities in the performance of this Agreement, except to the
extent that such are attributable to the negligence, or intentional act or omission or willful
misconduct of Grantor, or its respective employees, agents or contractors. Grantee shall further
defend and indemnify all claims to the extent arising out of the installation, operation, use,
maintenance, repair, removal, or presence of the Grantee's Conduit on the Easement Area,
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except to the extent that a claim arises from the negligence or intentional act or omission or
willful misconduct of Grantor or its respective employees, agents or contractors.
Notwithstanding any other term, covenant or condition of this Agreement, the Grantor's
liability under this Agreement for any claim of any nature or any cause of action against Grantor,
by any person or party, including any claim or action by Grantee, is limited to the liability limits
set forth in Minnesota Statutes, Chapter 466.
12. Limitation of Liability. Notwithstanding anything to the contrary in this
Agreement, in no event will either party be liable to the other party for, or indemnify the other
party against, punitive, indirect, incidental, special or consequential damages, including, without
limitation, loss of profits, income or business opportunities.
13. Assignment, Sublease, and Use. This Agreement, or rights thereunder, are
personal to the Grantee and may not be sold, assigned, or transferred at any time by Grantee
without written approval or consent of the Grantor except under the following which will not
require Grantor's consent: (i) to Grantee's principal, affiliates, or subsidiaries of its principal, (ii)
to any entity acquiring all or substantially all of Grantee's assets in the market as defined by the
Federal Communications Commission ("FCC") in which the County Site and Easement Area is
located or (ill) by reason of a merger, acquisition or other business reorganization, provided that
Grantee provides Grantor with notice of the foregoing and, provided further, that any entity
purchasing all of Grantee's assets in the market defined by the FCC in which the County Site and
Easement Area is located, assumes this Agreement in writing. As to other parties, this
Agreement may not be sold, assigned or transferred without the written consent of the Grantor,
such consent not to be unreasonably withheld, conditioned or delayed. Grantee may not lease or
sublease the Easement Area or Grantee's Conduit to a third party. Grantee's Conduit may be
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used only by Grantee, its affiliates, or subsidiaries, or an entity to which Grantee's rights have
been assigned pursuant to this paragraph.
14. Condemnation. In the event the whole of the Easement Area is taken by eminent
domain, this Agreement shall terminate as of the date title to the Easement Area vests in the
condemning authority. In event a portion of the Easement Area is taken by eminent domain,
either party shall have the right to terminate this Agreement as of the date of title transfer, by
giving thirty (30) days' written notice to the other party. In the event of any taking under the
power of eminent domain, Grantee shall not be entitled to any portion of the reward paid for the
taking and the Grantor shall receive full amount of such award. Grantee 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 Easement Area shall
belong to Grantor, Grantee shall have the right to claim and recover from the condemning
authority, but not from Grantor, such compensation as may be separately awarded or recoverable
by Grantee on account of any and all damage to Grantee's business and any costs or expenses
incurred by Grantee in moving/removing/relocating all, or a portion, of the Grantee's Conduit
and Grantee's Micro Fiber.
15. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed given if personally delivered or mailed, certified mail,
return receipt requested, or delivered by a nationally recognized overnight courier service, to the
following addresses or to any other address of Grantee or Grantor that is given from time to time
to the other party pursuant to this provision, regarding written notice:
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If to Grantor: City ofEdina
4801 West 50th Street
Edina,MN 55424
Attn: Tim Barnes, Facilities Manager
with copy to: Edina City Attorney
Campbell Knutson, P.A.
860 Blue Gentian Road, Suite 290
Eagan,MN 55121
If to Grantee: New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: MPLSMN3214;
Cell Site Name: Braemar Park (MN)
Fixed Asset No. 12564768
575 Morosgo Drive NE
Atlanta, GA 30324
with copy to: New Cingular Wireless PCS, LLC
Attn: AT&T Legal Department
Re: Cell Site #: MPLSMN3214;
Cell Site Name: Braemar Park (MN)
Fixed Asset No. 12564768
208 S. Akard Street
Dallas, TX 75202-4206
16. Miscellaneous.
a. Authority. Each of the parties hereto warrants to the other that the person or
persons executing this Agreement on behalf of that party has the full right, power and authority
to enter into and execute this Agreement on that party's behalf and that no consent from any
other person or entity is necessary as a condition precedent to the legal effect of this Agreement.
b. Complete Agreement; Amendments. This Agreement supersedes all prior
discussions and negotiations and contains all agreements and understandings between the
Grantor and Grantee as to the subject matter contained herein. This Agreement may only be
amended in writing signed by all parties. All Exhibits are incorporated into this Agreement by
reference.
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c. Counterparts. This Agreement may be signed in counterparts by the parties
hereto each of which counterparts shall be considered an original.
d. Binding Effect. The terms and conditions of this Agreement shall run with
Grantor's property that contains the Easement Area, and inure to the benefit of and be binding on
the respective parties and their respective successors and permitted assignees.
e. Enforcement and Attorneys' Fees. The prevailing party in any action or
proceeding in court to enforce the terms of this Agreement including any appeals shall be
entitled to receive its reasonable attorney's fees and other reasonable costs and expenses from the
non-prevailing party.
f. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of Minnesota.
g. Severability. If any term of this Agreement is found to be void or invalid, such
invalidity shall not affect the remaining terms of this Agreement, which shall continue in full
force and effect.
h. Estoppel Information. Each party shall from time to time, within sixty (60) days
after written request from the other party, execute, acknowledge and deliver an estoppel
certificate indicating that this Agreement and amendments thereto (if any) are in full force and
effect, setting forth the expiration date of the then current Term, and acknowledging that there
are not, to such party's knowledge, any uncured defaults, or specifying such defaults, if any, are
claimed.
i. Brokers. 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 in this transaction, that party
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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.
j. No Waiver. No provision of this Agreement will be deemed waived by either
party unless expressly waived in writing by the waiving party. No waiver shall be implied by
delay or any other act or omission of either party. No waiver by either party of any provisions of
this Agreement shall be deemed a waiver of such provision with respect to any subsequent
matter relating to such provision.
k. Recitals. The Recitals set forth above are hereby incorporated in this Agreement
as though they were set forth in the body hereof.
1. Recording. This Agreement may be recorded against Easement Area. Upon
termination or expiration of the Term, this Agreement may be removed from the recorded title of
the Easement Area unilaterally by the Grantor.
[Remainder of Page Intentionally Left Blank]
[Signature Pages Follow.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the
day and year first above written.
GRANTOR:
CITY OF E)
James Hovland, Mayor
M.AND:
CSco»^il?Vty Manager' €~^/
STATE OF MINNESOTA )
(ss.COUNTY OF HENNEPIN )
4-^The foregoing instrument was acknowledged before me this ILff 'day of
WU _, 2017, by James Hovland and Scott Neal, respectively the Mayor and City
Manage of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation
and pursuant to the authority granted by its City Council.
^LA
Notary Public
l^u
.DEBRAANANGENCOMM. <f61;OWNotary Putrfte'State of MinnesotaM^t Commission Expires'JOIffOM
13
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GRANTEE:
NEW CINGULAR WIRELESS PCS, LLC
By: AT&T Mobility Cflrporation
Its: Manager
B<2&BY7^
Name: Name: Michelle Durand^' K^rf^^"structto"
Date: ^/5/ / 7
STATE OF Tr^^^SO
COUNTY OF ft0-n^^)(ss.
day of
of
AT&T Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC, a Delaware
limited liability company, on behalf of the limited liability company.
The foregoing instrument was acknowledged before me this
'ff-NQ^ , 2017, by T^\i^-u^ Cu^a^-cV the
KATHYLYNNLENERSNotary Public
State of Minnesota
My Commission Expires
January 31,2021
C^J?^(ftft^-
Notary Public ^-rvfi/^
DRAFTED BY:
CAMPBELL, KNUTSON, P.A.
860 Blue Gentian Road, Suite 290
Eagan,MN 55121
Telephone: 651-452-5000
[JFK]
14
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EXHIBIT "A"EASEMENT AREAPROPOSED UT1U7Y EASEMENT DESCRIPTION:A 10.00 foot wide easement for utility purposes over, under and across the West Half of theSouthwest Quarter of Section 7. Township 116 North. Range 21 West of the Fifth Principal Meridian,Hennepin County. Minnesota, the centeriine of said easement is described as follows:Commencing ot the southwest comer of said West Half of the Southwest Quarter; thence South89 degrees 08 minutes 56 seconds East. along the South line of scud West Half of theSouthwest Quarter, a distance of 969.72 Feet to the southwest comer of Parcel 28 os shownon Minnesota Department of Transportation Right of Way Plat Number 27-206; thence North15 degrees 26 minutes 54 seconds West. along the westeriy line of sard Parcel 28 and theeasterly right of way line of U.S. Highway Number 169. a drstance of 484.03 feet; thencenortheasterly 141.50 feet along a non—tangentlal curve, concave to the northwest, having aradius of 117.65 feet, a central angle of 68 degrees 54 minutes 51 seconds and a chord whichbears North 40 degrees 05 minutes 41 seconds East; thence northerly a distance of 295.31feet along a compound curve. concave to the West, having a radius of 534.29 feet and acentral angle of 31 degrees 40 minutes 04 seconds: thence northerly a distance of 186.03 feetalong a reverse curve, concave to the East, having a radius of 369.37 feet and a central angleof 28 degrees 51 minutes 24 seconds; thence northeriy a distance of 264.77 feet along acompound curve, concave to the East, having a radius of 912.61 feet and a central angle of16 degrees 37 minutes 23 seconds; thence northerly a distance of 268.57 feet along a reversecurve, concave to the West, having a radius of 324.99 feet and a central angle of 47 degrees20 minutes 55 seconds; thence northerly a distance of 81.99 feet along a reverse curve,concove to the East. having o radius of 156.80 feet and a central angle of 29 degrees 57minutes 33 seconds; thence South 87 degrees 56 minutes 25 seconds East, not tongerrt tothe lost described curve, o distance of 50.00 feet; thence North 2 degrees 03 minutes 35seconds East, a d?stonce of 100.00 feet; thence North 87 degrees 56 minutes 25 secondsWest, o distance of 34.83 feet to the Point of Beginning of the centerline to be described:thence North 1 degree 08 m'mutes 34 seconds West, a distance of 84.00 feet; thence North 16degrees 43 minutes 03 seconds East, a distance of 55.00 feet and said centerllne thereterminating.The sidelines of said easement shall be shortened or lengthened to terminate at lines bearing North87 degrees 56 minutes 25 seconds West and South 87 degrees 56 minutes 25 seconds East fromthe Point of Beginnmg.See attached Site Survey dated 11/2/2016 prepared by Widseth Smith Nolting and consisting of two (2) pages.15190839v7A
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EXHIBIT "B"
GRANTEE'S REQUIRED INSURANCE
a. Worker's Compensation. The Grantee must maintain Workers' Compensation
insurance in compliance with all applicable statutes, rules and regulations of the State of
Minnesota. The policy shall also provide Employer's Liability coverage with limits of $500,000
Bodily Injury each accident, $500,000 Bodily Injury by disease, policy limit, and $500,000
Bodily Injury by disease, each employee, and waiver of subrogation to Lessor.
b. General Liability. The Grantee must maintain commercial general liability
insurance on an ISO CGL form 00 01 or broader with a limit of $5,000,000 per occurrence for
bodily injury and property damage and $5,000,000 general aggregate, including
Premises/Operation, broad form contractual liability, independent contractors, and
products/completed operations.
c. Automobile Liability. The Grantee must carry Commercial Automobile Liability
in the amount of $1,000,000 combined single limit each accident for bodily injury and property
damage covering the ownership, use, maintenance or operation of all owned, non-owned and
hired automobiles.
d. Additional Insured - Certificate of Insurance. The Grantee shall provide, prior to
the start of installation of the Grantee's Conduit and Grantee's Equipment, evidence of the
required insurance in the form of a Certificate of Insurance issued by a company (rated A- or
better), licensed, authorized, or permitted to do business in the State of Minnesota, which
includes all coverages required in this Paragraph. Grantee will include the Grantor as an
Additional Insured as its interests may appear under this Agreement on the General Liability and
Commercial Automobile Liability Policies.
Notwithstanding the forgoing, Grantee may, in its sole discretion, self-insure any of the required
insurance under the same terms as required by this Agreement. In the event Grantee elects to
self-insure its obligation under this Agreement to include Grantor as an additional insured, the
following conditions apply: (i) Grantor shall promptly and no later than thirty (30) days after
notice thereof provide Grantee with written notice of any claim, demand, lawsuit, or the like for
which it seeks coverage pursuant to this Section and provide Grantee with copies of any
demands, notices, summonses, or legal papers received in connection with such claim, demand,
lawsuit, or the like; (ii) Grantor shall not settle any such claim, demand, lawsuit, or the like
without the prior written consent of Grantee; and (iii) Grantor shall fully cooperate with Grantee
in the defense of the claim, demand, lawsuit, or the like.
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