HomeMy WebLinkAbout2020-3044DocuSign Envelope ID: 5936E5E4-5F48-4E9B-9985-094D8486F61 B
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made as of the ___ day of ____ _
2020 by and among the City of Columbia Heights ("City"), Crown Castle AS LLC ("Crown
Castle") and New Cingular Wireless PCS, LLC ("New Cingular") (collectively "Parties").
RECITALS:
A.The Parties are engaged in a condemnation lawsuit ("Court File No. 02-CV-20-
2515) (Anoka County, Minnesota) ("Lawsuit"). In the Lawsuit, the City seeks to acquire by
condemnation certain real property rights of the Parties. Crown Castle objected to the City's
Petition in the Lawsuit. Both Crown Castle and New Cingular seek certain compensation,
relocation assistance, services and benefits and other consideration in connection with the
resolution of the Lawsuit.
B.The Parties engaged in a mediation and have negotiated a mediated resolution of
the Lawsuit.
C.These recitals are incorporated into the terms of this Agreement set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
exhibits contained and referenced herein, the parties hereto, on behalf of themselves, their
successors, and assigns, agree as follows:
I.Lease. Within fifteen ( 15) days of the full execution of this Agreement, the City
and Crown Castle will execute the Lease attached hereto as Exhibit A to this Agreement
("Lease"). Pursuant to the Lease, the City will, at its sole cost, construct an approximately 180-
foot monopole tower ("Tower") at the location described on Exhibit X to the Lease and pursuant
to plans and specifications described on Exhibit Y to the Lease. At the City's request, New
Cingular relocated its rooftop wireless facilities and equipment (the "Cingular Installation") from
US.129342759.01
Contract # 2020-3044
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its original location on the Northeast Bank Building in Columbia Heights, Minnesota ("Original
Location") to a temporary location and will permanently relocate the Cingular Installation to the
top position on the Tower under terms that are set forth in the existing Master License
Agreement between AT&T Mobility LLC and Crown Castle or its affiliates dated July 1, 2005,
except that the monthly rent payment shall be substantially similar to the amount of rent New
Cingular paid at the Original Location and otherwise subject to the other standard terms and
conditions under the Master License Agreement, including periodic rent increases.
2. Waiver of Fees or Rent at Temporary Location. New Cingular currently
occupies a site at the Columbia Heights library, located at 3939 Central Ave N.E., Columbia
Heights, MN, for a cellular tower on wheels ("COW") ("the Temporary Location") in
accordance with a license agreement effective May 1, 2020 through April 30, 2021, between the
City and New Cingular. By approving this agreement, the City amends its Resolution approving
the license agreement and the City and New Cingular agree to amend the license agreement to
provide for New Cingular's continued use of the Temporary Location from and after April 30,
2021 through October 31, 2021.
3.Compensation to Crown Castle. Within ten (10) days of the issuance of the Order
Granting Petition and Quick Take (attached as Exhibit B to this Agreement), the City shall pay to
Crown Castle the total sum of $335,000.00 ("Compensation"). Payment of the Compensation shall
be by wire transfer in accordance with wire instructions that will be timely provided to the City by
Crown Castle.
4.Contingent Additional Compensation to Crown Castle. In the event that the
Tower is not: (a) fully entitled by the City with all necessary zoning, land use and municipal
approvals, (b) constructed in accordance with Exhibit Y to the Lease and ( c) fully capable for use
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by Crown Castle for leasing to cellular service providers and related uses on or before March 1,
2022 ("Completion Date") (collectively "Milestone Requirements"), with time being of the essence,
the City shall, on or before April 1, 2022, pay to Crown Castle additional compensation of
$335,000.00 ("Additional Compensation"). In addition, if the Milestone Requirements are not met
by the City as set forth in this Paragraph, the City will pay Crown Castle's relocation assistance,
services and benefits in accordance with Minn. Stat. § 117.52 et. seq. and the State and Federal
regulations set forth herein ("Relocation Benefits"). The time for Crown Castle to bring a claim for
Relocation Benefits shall extend to September 1, 2023.
The City will not be obligated to pay Additional Compensation or Relocation Benefits to
Crown Castle if the Milestone Requirements are not met due solely to delays outside of the City's
control, including but not limited to delays caused by Crown Castle, the Federal Communications
Commission ("FCC"), or force majeure.
5.Payment of Relocation Expenses to New Cingular. The City acknowledges it is
responsible for payment of New Cingular's relocation and reestablishment expenses and benefits
in accordance with Minn. Stat. § 117.52 et. seq. and the State and Federal laws and regulations
set forth therein (the "Relocation Expenses"). The City agrees to pay New Cingular $13,095.50
for the Relocation Expenses New Cingular incurred in moving the Cingular Installation from its
Original Location, and $119,167.87 for the Relocation Expenses incurred in establishing the
Temporary Location for the Cingular Installation. These Relocation Expenses, totaling
$132,263.37, shall be paid to New Cingular by the City within 10 days of the issuance of the
Order Granting Petition and Quick Take. The estimated cost of relocating the Cingular
Installation to the Tower is $389,000. New Cingular, however, agrees to accept $342,736.63 (for
a total of $475,000 in Relocation Expenses, actual and estimated combined). The $342,736.63
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discounted estimated cost shall be paid by the City to New Cingular on or before October 1,
2021, as full and final payment of all Relocation Expenses otherwise due from the City on the
condition that the Tower is substantially complete by October 1, 2021. If this condition is not
met, the City must still pay the $342,736.63 to New Cingular on or before October 1, 2021, and
also shall reimburse New Cingular for all actual expenses in excess of $342,736.63 that New
Cingular incurs in re-establishing the Cingular Installation at its permanent location, including
but not limited to all due diligence expenses incurred to assess the suitability of alternative sites
regardless of whether the alternative site was ultimately utilized ("Actual Expenses"). For
purposes of this paragraph only, the determination as to whether the Tower is substantially
complete by October 1, 2021 will be made in the sole and absolute discretion of New Cingular,
not to be unreasonably withheld. New Cingular reserves the right to waive this condition
unilaterally or to modify this condition upon written terms mutually agreeable between the City
and New Cingular without the need to amend this Agreement. Absent such a waiver or
modification of the condition, the City shall tender payment of New Cingular's Actual Expenses
within30 days of the City's receipt of paid invoices or other documentation of Actual Expenses
from New Cingular.
6.Mutual Cooperation. Both Crown Castle and New Cingular will provide
reasonable cooperation to the City, but at no out-of-pocket expense, in connection with the
construction of the Tower as described in Exhibit Y to the Lease. Both Crown Castle and New
Cingular will provide reasonable cooperation to the City, but at no out-of-pocket expense, in
connection with clearing title of any interests of Crown Castle and New Cingular to the existing
Northeast Bank Building described on the Petition in the Lawsuit.
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7.Lawsuit. Upon the full execution of this Agreement, Crown Castle will dismiss
with prejudice its objection to the City's Petition in the Lawsuit. The Parties agree that the City
will present, without objection from Crown Castle or from New Cingular, the proposed Order
Granting Petition and Quick Take (attached as Exhibit B to this Agreement) to the District Court
for signature. Upon full execution of this Agreement, Crown Castle and New Cingular waive any
and all rights to appeal the Order.
Upon the full execution of this Agreement, both Crown Castle and New Cingular waive
the right to seek compensation and damages in the Lawsuit or related proceeding, provided that
Crown Castle and New Cingular reserve and do not waive any right to enforce the obligations
and terms of this Agreement.
8.Waiver of Immunity. The City waives all defenses to the enforcement of this
Agreement based on official immunity, statutory immunity and/or limitations of liability set forth
in Minnesota Statute Chapter 466.
9.Representations and Warranties. It is acknowledged that each Party has read
this Agreement and has consulted counsel before executing the same; each Party has relied upon
its own judgment and/or that of its counsel in executing this Agreement and has not relied on or
been induced by any representation, statement or act by any other Party that is not referred to in
this instrument; each Party enters into this Agreement voluntarily, with full knowledge of its
significance; each Party has full authority to enter into the Agreement; and the Agreement is in
all respects complete and final. The individuals executing this Agreement below represent and
warrant that they have full and complete authority to execute this Agreement on behalf of the
Party for which they have signed.
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10.Municipal Approval. This Agreement is subject to formal approval by the City
at a duly noticed City Council meeting. If this Agreement is not approved by the City for any
reason on or before September 17, 2020, this Agreement and the obligations herein are void and
all claims, defenses and arguments in the Lawsuit are preserved.
11.Interpretation. This Agreement and the Exhibits to this Agreement constitute
the entire agreement of the Parties as to the subject matter contained herein. The undersigned
acknowledge that there are no communications or oral understandings contrary, or that in any
way restrict, this Agreement, and that all prior agreements or understandings within the scope of
the subject matter of this Agreement are, upon the execution and delivery of this Agreement,
superseded, null and void. Any subsequent modification of this Agreement must be in writing
and signed by all parties to be effective. The Agreement is governed by and is to be construed in
accordance with the laws of the State of Minnesota.
This Agreement has been reached through negotiations between the Parties. Neither
Party shall assert that this Agreement be construed against the "drafter" of the same. The Parties
have used their own judgment in entering into this Agreement.
12.Execution by Facsimile Signatures and in Counterparts. The Parties agree
that facsimile signatures or signatures delivered by any other electronic means shall have the
same force and effect as original signatures. This Agreement may be executed in one or more
counterparts, each counterpart to be considered an original portion of this Agreement.
13.No Assignment. Each of the Parties to this Agreement represents and warrants
that no claim or cause of action that is the subject of, or related to, this lawsuit or this Agreement
has been assigned, transferred to, or resides in any other person or entity, whether by agreement
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or operation of law or otherwise, including through an assignment or transfer pursuant to any
right or claim of subrogation.
14.Attorneys' Fees. Each party agrees to be responsible for its own costs incurred
in this matter, including but not limited to all attorneys' fees and other expenses. However, in the
event of any dispute relating to this Agreement, the prevailing party(ies) shall be entitled to
reasonable attorneys' fees and costs.
15.Mediation. The Parties acknowledge that this Agreement was reached in
connection with a mediation in accordance with the Minnesota Civil Mediation Act. As such,
the Parties were advised and acknowledge (a) the Mediator has no duty to protect their interests
or provide them with information about their legal rights, (b) signing a mediated settlement
agreement may adversely affect their legal rights and (c) they should consult an attorney (and
have consulted an attorney) before signing a mediated settlement agreement if they are uncertain
of their rights.
The mediator's fees shall be paid m accordance with the Mediation Agreement
previously executed by all Parties.
[Signature page to follow J
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WHEREFORE, the Parties, by setting forth their signatures below, agree to be bound by
the foregoing terms.
THE CITY OF COLUMBIA HEIGHTS:
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Date: 1 Irr/ :; o :2 c>j
CROWN CASTLE AS LLC:
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I�: Acquisition Manager
Print Name: Amy Torrington
NEW CINGULAR WIRELESS PCS, LLC: a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By: ____________ _
Its: --------------
Print Name: ----------
Date: -------------
Donna Schmitt, Mayor
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WHEREFORE, the Parties, by setting forth their signatures below, agree to be bound by
the foregoing terms.
THE CITY OF COLUMBIA HEIGHTS:
Date: ----------
Date: ----------
CROWN CASTLE AS LLC:
Date: ----------
By: __________ _
Its: --------------
Print Name: ----------
NEW CINGULAR WIRELESS PCS, LLC:
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By'7h..f'
Its: Director ----------
Print Name: Michelle Durand
Date: 9/18/2020
----
---------
US.129447669.01
Donna Schmitt, Mayor
Kelli Bourgeois, City Manager
DocuSign Envelope ID: 5936E5E4-5F48-4E98-9985-094D8486F618
Exhibit A Lease
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GROUND LEASE AGREEMENT
THIS GROUND LEASE AGREEMENT (the "Agreement") is made effective this _____ day of
_____ , 20 _("Effective Date") by and between the City of Columbia Heights, a Minnesota municipal corporation,
organized and existing under the laws of the State of Minnesota ("Lessor") and CROWN CASTLE TOWERS 06-2 LLC, a
Delaware limited liability company ("Lessee").
I.Description of Property. Lessor is the owner of certain real property located in Anoka County, Minnesota.
A legal description of said property is attached hereto as Exhibit "X-1" and depicted on Exhibit X-1 (hereinafter
"Lessor's Property").
2.Lease of Premises and Permitted Use. Lessor hereby leases to Lessee a rectangular portion on the southeast
comer of Lessor's Property, to accommodate the Tower (described below) and access to the Tower and to be further
described in an engineering design and/or sketch that will become part of the Lease and attached as Exhibit "X-2" and
the Tower to be constructed by the Lessor (as further described below) (the "Leased Premises"), for the purpose of
(i)constructing, maintaining and operating communications facilities, including without limitation, tower structures,
antenna support structures, fencing, cabinets, meter boards, buildings, antennas, cables, fiber, and equipment
("Improvements") which Improvements shall be attached to or used in connection with the Tower to be constructed
by Lessor (as further described below) and (ii) uses incidental thereto, including without limitation testing of any kind
and installation of equipment to accommodate new technologies or future innovations for receiving and transmitting
signals for Lessee's use and the use of its sublessees, licensees, and invitees (collectively the "Permitted Use"). The
final size and dimension of the Leased Premises shall be mutually approved by the Lessor and Lessee, but shall be of
sufficient size to accommodate the Tower ( described below), related improvements and ground equipment of four ( 4)
carriers. It is the intent of the parties that Lessee's Improvements shall not constitute a fixture and shall remain the
property of the Lessee.
(A)The Work Letter attached as Exhibit Y to this Lease ("Work Letter") is incorporated herein by
reference. In accordance with the Work Letter, the Lessor shall, at its sole cost and expense, construct or cause to be
constructed an approximately 180-foot monopole tower to accommodate the Permitted Use ("Tower"). The Permitted
Use shall include at least 4 locations for cellular service providers, with New Cingular Wireless PCS, LLC or an
affiliate thereof with the top position.
3.Easements. Lessor hereby grants the following easements and rights-of-way over, under and upon Lessor's
Property to Lessee, Lessee's employees, agents, contractors, sublessees, licensees and their employees, agents and
contractors: (i) an easement over such portions of Lessor's Property as is reasonably necessary for the installation,
operation, repair and maintenance, of the Tower to be located upon Leased Premises; (ii) an easement over such
portion of Lessor's Property as is reasonably necessary to obtain or comply with any Approvals (as defined in Section
7); (iii) a thirty foot (30') wide easement in the location shown in Exhibit "X-2", for ingress, egress and installation
purposes including without limitation staging, storing and parking of equipment, vehicles, cranes and related materials,
seven (7) days per week, twenty-four (24) hours per day, to extend from the nearest public right-of-way to the Leased
Premises; (iv) a utility easement (the "Utility Easement") in the location shown in Exhibit "X-2", for the installation,
repair, replacement and maintenance of utility wires, poles, cables, conduits and pipes (collectively, the "Easements").
The Easements shall remain in effect during the Lease Term and thereafter for a reasonable period of time for Lessee
to remove its improvements.
4.Term. The term of this Agreement shall be for a period of Forty (40) years commencing on the date that
the Lessor completes the construction of Tower so that the Tower is available for the Permitted Use, which shall be
no later than March I, 2022 ("Effective Date") and ending on the date that is the last date of the 40th Year after the
Effective Date ("Termination Date").
5.Lessee's Right to Terminate; Effect of Termination by Lessee. Lessee shall have the right to terminate
this Agreement, at any time, without cause, by providing Lessor with one hundred eighty ( 180) days' prior written
notice. Any monies owed by either party to the other, up to the date of termination, shall be paid within thirty (30)
days of the termination date.
6.Rent. As consideration for Lessor entering into this Agreement, within thirty (30) days of the Effective Date,
Lessee shall pay Lessor the total sum of One Hundred Dollars ($100.00) for the entire Term.
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7.Additional Rent. As further consideration for Lessor entering into this Agreement, if Lessee subleases,
licenses or grants a similar right of use or occupancy in the Tower and Leased Premises to more than one (I)unaffiliated third party, then Lessee agrees to pay to Lessor fifty percent (50%) of the rental, license or similar
payments actually received by Lessee from such second and subsequent subtenant(s) (each a "Future Subtenant")
( excluding any reimbursement of taxes, construction costs, installation costs, or revenue share reimbursement) (the"Additional Rent") within thirty (30) days after receipt of said payments by Lessee. Notwithstanding the foregoing,
the parties agree that Lessee's obligation to pay Additional Rent applies only to the second and subsequentsubtenant(s). No Additional Rent will be paid in the event that there one (I) Subtenant on the Leased Premises or for
the first subtenant in the event that there are multiple Subtenants. Lessee shall have no obligation for payment of theAdditional Rent to Lessor of such share of rental, license or similar payments if not actually received by Lessee. Non
payment of such rental, license or other similar payment by a Future Subtenant shall not be an event of default underthe Lease. For avoidance of doubt, Lessee shall have the exclusive authority and right in its sole discretion to sublease,license or grant a similar right of use or occupancy any portion of the Tower and Leased Premises to any sub lessee,licensee or user. Lessee shall have sole discretion as to whether, and on what terms, to sublease, license or otherwise
allow occupancy of the Tower and Leased Premises. Once per calendar year, Lessor may submit a written request toLessee for a business summary report pertaining to the Additional Rent for the prior twelve ( 12) month period, and
Lessee shall provide such written report to Lessor within sixty (60) days after Lessee's receipt of such writtenrequest. Lessor shall send such written request to the Notice address set forth in the Lease.
8.Lessor's Cooperation. During the Lease Term, Lessor shall: (i) cooperate with Lessee in its efforts toobtain all of the certificates, permits, licenses and other approvals that Lessee, in its sole discretion, deems necessary
for its intended use of the Leased Premises ("Approvals"), including all appeals; and (ii) take no action that wouldadversely affect the Leased Premises. Lessor acknowledges that Lessee's ability to use the Leased Premises is
contingent upon Lessee obtaining and maintaining the Approvals. Lessor shall grant to Lessee all such Approvalsthat are in the control of the Lessor. In the event that any necessary Approvals are not obtained on or before March
I, 2022, this Lessee shall have the right, but not the obligation, to terminate this Lease. Lessor shall take no actionthat would adversely affect Lessee's use of the Premises.
9.Hazardous Materials.
(A)Lessee's Obligation and Indemnity. Lessee shall not (either with or without negligence) cause orpermit the escape, disposal or release of any Hazardous Materials on or from the Leased Premises in any manner
prohibited by law. Lessee shall indemnify and hold Lessor harmless from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) arising from the release of any Hazardous Materials on the Leased Premises if caused by Lessee or persons acting under Lessee.
(B)Lessor's Obligation and Indemnity. Lessor shall not (either with or without negligence) cause or
permit the escape, disposal or release of any Hazardous Materials on or from Lessor's Property or Leased Premises in any manner prohibited by law. Lessor shall indemnify and hold Lessee harmless from any and all claims, damages,
fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) arising from the presence or release of any Hazardous Materials on Lessor's Property or Leased Premises unless caused by Lessee or persons acting under Lessee.
(C)For purposes of this Agreement the term "Hazardous Materials" means any substance which is(i)designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste,
pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or enacted,
(ii)a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs,(iv)lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials, or (viii) radioactive materials.
"Environmental Law(s)" means the Comprehensive Environmental Response, Compensation, and Liability Act of1980, 42 U.S.C. Sections 9601, et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections6901, et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601, et seq., the Hazardous MaterialsTransportation Act, 49 U.S.C. 510 I, et seq., and the Clean Water Act, 33 U.S.C. Sections 1251, et seq., as said lawshave been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other federal,state or local law, statute, rule, regulation or ordinance which regulates or proscribes the use, storage, disposal,
presence, clean-up, transportation or release or threatened release into the environment of Hazardous Material.
10.Insurance. Lessee, at its sole expense, shall obtain and keep in force insurance which may be required byany federal, state or local statute or ordinance of any governmental body having jurisdiction in connection with the
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operation of Lessee's business upon the Leased Premises. At a minimum, said insurance shall include Commercial
General Liability coverage in an amount not less than $1,000,000 per occurrence and $2,000,000 in the aggregate and
shall name Lessor as an additional insured. The required limits recited herein may be met by primary and excess or
umbrella policies covering other locations. Upon Lessor's written request, which request shall not exceed once per
year, Lessee will provide Lessor with a copy of the certificate of insurance evidencing such coverage.
11.Removal of Obstructions. Lessee has the right, at its sole cost, to remove obstructions from Lessor's
Property, including but not limited to vegetation, which immediately interferes with or presents a hazard to the
Lessee's receipt or transmission of communications signal(s) at the Tower. Upon notice to and permission from
Lessor, which shall not be unreasonably withheld, conditioned or delayed, Lessee has the right, at its sole cost, to
remove any other obstructions from Lessor's Property, including but not limited to vegetation, which may encroach
upon, interfere with, or present a hazard to Lessee's use of the Leased Premises or the Easements.
12.Maintenance, Repair and Replacement of the Tower Lessor shall be responsible for any capital
improvements to or replacements of the Tower after the initial construction of the Tower necessary for the Tower to
be used for the Permitted use. All capital improvements by Lessor of the Tower shall be done in a workman like
manner and in accordance with the then current cell tower industry standards. Lessee shall be responsible for routine
care and maintenance of the Tower.
13.Real Estate Taxes. Lessor shall pay all real estate taxes on Lessor's Property.
14.Waiver of Claims and Rights of Subrogation. The parties hereby waive any and all rights of action for
negligence against the other on account of damage to the Improvements, Lessor's Property or to the Leased Premises
resulting from any fire or other casualty of the kind covered by property insurance policies with extended coverage,
regardless of whether or not, or in what amount, such insurance is carried by the parties. All policies of property
insurance carried by either party for the Improvements, Lessor's Property or the Leased Premises shall include a clause
or endorsement denying to the insurer rights by way of subrogation against the other party to the extent rights have
been waived by the insured before the occurrence of injury or loss.
15.Default.
(A)Notice of Default; Cure Period. In the event that there is a default by Lessor or Lessee (the
"Defaulting Party") with respect to any of the provisions of this Agreement or Lessor's or Lessee's obligations under
this Agreement, the other party (the "Non-Defaulting Party") shall give the Defaulting Party written notice of such
default. After receipt of such written notice, the Defaulting Party shall have thirty (30) days in which to cure any
monetary default and sixty (60) days in which to cure any non-monetary default. The Defaulting Party shall have
such extended periods as may be required beyond the sixty (60) day cure period to cure any non-monetary default if
the nature of the cure is such that it reasonably requires more than sixty (60) days to cure, and Defaulting Party
commences the cure within the sixty (60) day period and thereafter continuously and diligently pursues the cure to
completion. The Non-Defaulting Party may not maintain any action or effect any remedies for default against the
Defaulting Party unless and until the Defaulting Party has failed to cure the same within the time periods provided in
this Section.
(B)Consequences of Lessee's Default. In the event that Lessee is in default beyond the applicable
periods set forth above, Lessor shall have the right to injunctive relief, to require specific performance of this
Agreement and to pursue an action for damages available at law.
(C)Consequences of Lessor's Default. In the event that Lessor is in default beyond the applicable
periods set forth above, Lessee shall have the right to injunctive relief, to require specific performance of this
Agreement, to pursue an action for damages, terminate the Lease, vacate the Leased Premises and be relieved from
all further obligations under this Agreement; perform the obligation(s) of Lessor specified in such notice, and charge
Lessor for any expenditures reasonably made by Lessee in so doing or set-off from Rent any amount reasonably
expended by Lessee as a result of such default.
16.Limitation on Damages. In no event shall either party be liable to the other for consequential, indirect,
speculative or punitive damages in connection with or arising from this Agreement, or the use of the Leased Premises,
Easements, and/or Utility Easement.
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17.Hold Harmless. Each party shall indemnify and defend the other party against, and hold the other party
harmless from, any claim of liability or loss from personal injury or property damage arising from the use andoccupancy of the Leased Premises or Lessor's Property by such indemnifying party, its employees, contractors,servants or agents, except to the extent such claims are caused by the intentional misconduct or negligent acts oromissions of the other party, its employees, contractors, servants or agents.
18.Lessor's Representations and Warranties Lessor covenants that Lessor holds good and marketable fee
simple title to Lessor's Property and the Leased Premises and has full authority to enter into and execute thisAgreement. Lessor represents and warrants that it has taken all necessary or advisable municipal actions to enter into
this Agreement. Lessor represents and warrants that as of the date of this Agreement, there are no Hazardous Materialsat the Lessor's Property or the Leased Premises. Lessor represents and warrants that there are no encumbrances or
matters of title that would prevent the Lessee's use of the Property for the Permitted Use and Lessee's use of theEasements.
19.Interference with Lessee's Business. Lessor agrees that it will not permit the construction, installation or
operation on Lessor's Property of(i) any additional wireless communications facilities or (ii) any equipment or devicethat interferes with Lessee's use of the Leased Premises for a wireless communications facility. Each of the covenants
made by Lessor in this Section is a covenant running with the land for the benefit of the Leased Premises.
20.Eminent Domain. If Lessor receives notice of a proposed or threatened taking by eminent domain of anypart of the land upon which the Leased Premises or Easements are situated, whether through a condemnation lawsuit
or the acquisition of land pursuant to the power of eminent domain (a "Taking"), Lessor will notify Lessee of theproposed Taking within five (5) business days ofreceiving said notice. If the Taking affects any portion of the Leased
Premises or Easements that is less than the entire Leased Premises and Easements (a "Partial Taking"), then Lesseewill have the option to either (i) declare the Agreement null and void, effective as of the date of Taking, and thereafter
neither party will have any liability or obligation hereunder; or (ii) remain in possession of that portion of the LeasedPremises and Easements that will not be taken, in which event there shall be an equitable adjustment in rent and
Additional Rent on account of the portion of the Leased Premises and Easements so taken. In the event of a PartialTaking, the parties shall enter into any amendment of the Agreement made necessary as a result of the Partial Taking.With respect to any Taking each party shall have the right to contest the Taking and directly pursue an award for theirrespective interests. In the event of a Taking by Lessor, Lessee shall have the right to contest the Taking and directlypursue an award for its interest.
21.Applicable Law. This Agreement and the performance thereof shall be governed, interpreted, construed andregulated by the laws of the State of Minnesota. The parties agree that the venue for any litigation regarding this
Agreement shall be in the state or federal courts in the county where the Leased Premises is located.
22.Notices. All notices hereunder shall be in writing and shall be given by (i) established express deliveryservice which maintains delivery records, (ii) hand delivery, or (iii) certified or registered mail, postage prepaid, returnreceipt requested. Notices may also be given by facsimile transmission, provided that the notice is concurrently givenby one of the above methods. Notices are effective upon receipt, or upon attempted delivery if delivery is refused or
if delivery is impossible because of failure to provide reasonable means for accomplishing delivery. The notices shallbe sent to the parties at the following addresses:
Lessor:
Lessee:
Columbia Heights Community Development 590 40th Avenue NE
Columbia Heights, MN 55421
Crown Castle Towers 06-2 LLC Attn: Legal -Real Estate
2000 Corporate Drive, Canonsburg, PA 153 17-8564
23.Assignment, Sublease, Licensing and Encumbrance. Lessee has the right, at its sole discretion, to assign
its interest in this Agreement and to sublease or license use of the Leased Premises, Easements and Improvements.Assignment of this Agreement by Lessee shall be effective upon Lessee sending written notice to Lessor and shallrelieve Lessee from any further liability or obligation. Lessee has the further right to pledge or encumber its interestin this Agreement. Upon request to Lessor from any leasehold mortgagee, Lessor agrees to give the holder of such
Site Name: 4----------8 us in es s Unit #: ----------
DocuSign Envelope ID: 5936E5E4-5F48-4E9B-9985-094D8486F61 B
leasehold mortgage written notice of any default by Lessee and an opportunity to cure any such default within fifteen ( 15)days after such notice with respect to monetary defaults and within a commercially reasonable period of time
after such notice with respect to any non-monetary default.
24.Mortgages. In the event that the Leased Premises is currently encumbered or shall become encumbered by
such a mortgage, Lessor shall obtain and furnish to Lessee a commercially reasonable non-disturbance agreement, in
a form reasonably acceptable to Lessee, for each such mortgage, in recordable form. If Lessor fails to provide any
non-disturbance agreement, Lessee may withhold and accrue, without interest, the Rent until such time as Lessee
receives all such documentation.
25.Sale of Property. If Lessor sells all or part of Lessor's Property, of which the Leased Premises is a part then
such sale shall be under and subject to this Agreement.
26.Surrender of Property. Upon expiration or termination of this Agreement, Lessee shall, within a reasonable
time, remove all above ground Improvements and restore the Leased Premises as nearly as reasonably possible to its
original condition, without, however, being required to replace any trees or other plants removed, or alter the then
existing grading.
27.Quiet Enjoyment. Lessor covenants that Lessee, on paying Rent and performing the covenants of this
Agreement, shall peaceably and quietly have, hold and enjoy the Leased Premises and Easements.
28.Lessor's Waiver. Lessor hereby waives and releases any and all liens, whether statutory or under common
law, with respect to any of Lessee's property now or hereafter located on the Leased Premises.
29.Miscellaneous.
Recording. Lessee shall have the right to record a memorandum of this Agreement with the appropriate
recording officer. Lessor shall execute and deliver such a memorandum, for no additional consideration,
promptly upon Lessee's request.
Entire Agreement. Lessor and Lessee agree that this Agreement contains all of the agreements, promises and
understandings between Lessor and Lessee. No oral agreements, promises or understandings shall be binding
upon either Lessor or Lessee in any dispute, controversy or proceeding at law. Any addition, variation or
modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties
hereto.
Captions. The captions preceding the Sections of this Agreement are intended only for convenience of
reference and in no way define, limit or describe the scope of this Agreement or the intent of any provision
hereof.
Construction of Document. Lessor and Lessee acknowledge that this document shall not be construed in
favor of or against the drafter by virtue of said party being the drafter and that this Agreement shall not be
construed as a binding offer until signed by Lessee.
Partial Invalidity. If any term of this Agreement is found to be void or invalid, then such invalidity shall not
affect the remaining terms of this Agreement, which shall continue in full force and effect.
IRS Form W-9. Lessor agrees to provide Lessee with a completed IRS Form W-9, or its equivalent, upon
execution of this Agreement and at such other times as may be reasonably requested by Lessee. In the event
the Lessor's Property is transferred, the succeeding Lessor shall have a duty at the time of such transfer toprovide Lessee with a completed IRS Form W-9, or its equivalent, and other related paper work to affect a
transfer in Rent to the new Lessor. Lessor's failure to provide the IRS Form W-9 within thirty (30) days after
Lessee's request shall be considered a default and Lessee may take any reasonable action necessary to comply
with IRS regulations including, but not limited to, withholding applicable taxes from Rent payments.
[Signature pages follow]
Site Name: __________ _ 5
Business Unit#: __________ _
DocuSign Envelope ID: 5936E5E4-5F48-4E98-9985-094D8486F618
IN WITNESS WHEREOF, Lessor and Lessee having read the foregoing and intending to be legally bound hereby, have
executed this Agreement as of the day and year this Agreement is fully executed.
Site Name: 6 Business Un_i_t-#: _______ _
LESSOR:
City of Columbia Heights
A Minnesota municipal corporation
By: _____________ _
Print Name: _____________ _
Print Title_: _____________ _
Date: _______________ _
LESSEE:
CROWN CASTLE TOWERS 06-2 LLC,
a Delaware limited liability company
By: _____________ _
Print Name: _____________ _
Print Title: _____________ _
Date: _______________ _
DocuSign Envelope ID: 5936E5E4-5F48-4E9B-9985-094D8486F61B
EXHIBIT "X-1"
(Legal Description of Lessor's Property)
Site Name: Site_Name Business Unit#: BUN
DocuSign Envelope ID: 5936E5E4-5F48-4E9B-99B5-094DB486F61B
EXHIBIT "X-2"
(Leased Premises including access road to Leased Premises)
Site Name: Site_Name Business Unit#: BUN
DocuSign Envelope ID: 5936E5E4-5F48-4E9B-9985-094D8486F61 B
Exhibit Y
Work Letter
This Work Letter describes the process by which Lessor and Lessee will mutually agree upon the construction of
an approximately 180-foot-tall monopole structure for use as a cellular tower and the Permitted Use under the Lease
dated ______ between Lessor and Lessee. Upon approval by Lessor and Lessee, the Working Drawings
shall govern the construction, but Lessor and Lessee agree that the intent is to construct the following:
An approximately 180-foot-tall monopole structure for use by the Lessee and its licensees for not less than
4 cellular service carriers and related uses ("Tower")
Lessor and Lessee agree as follows:
(a)Preparation and Delivery. On or before March I, 2021, Lessor shall cause to be prepared
final working drawings of the Tower and any related improvements to be installed on the Premises and deliver the
same to Lessee for its review and approval). Such working drawings shall be prepared by Architect, or another
design consultant agreed upon by Lessor and Lessee. The Architect or design consultant shall have at least IO years
of experience with the construction of cellular towers.
(b)Approval Process. Lessee shall notify Lessor whether it approves of the submitted
working drawings within fifteen business days after Lessor's submission thereof. If Lessee disapproves of such
working drawings, then Lessee shall notify Lessor thereof specifying in reasonable detail the reasons for such
disapproval, in which case Lessor shall, within five business days after such notice, revise such working drawings
in accordance with Lessee's objections and submit the revised working drawings to Lessee for its review and
approval. Lessee shall notify Lessor in writing whether it approves of the resubmitted working drawings within ten
business days after its receipt thereof. This process shall be repeated until the working drawings have been finally
approved by Lessor and Lessee. If Lessee fails to notify Lessor that it disapproves of the initial working drawings
within fifteen business days (or, in the case of resubmitted working drawings, within ten business days) after the
submission thereof, then Lessee shall be deemed to have approved the working drawings in question. Any delay
caused by Lessee's unreasonable withholding of its consent or delay in giving its written approval as to such
working drawings shall constitute a Lessee Delay Day (defined below). As used herein, "Working Drawings"
means the final working dray.rings approved by Lessor and Lessee, as amended from time to time by any approved
changes thereto, and "Work" means all improvements to be constructed by Lessor in accordance with and as
indicated on the Working Drawings. After the Working Drawings have been approved by the Lessee, Lessor shall
cause the Work to be performed in substantial accordance with the Working Drawings, using contractors and
subcontractors selected by Lessor. After the Working Drawings have been approved by the Lessor and Lessee,
they shall become part of the Lease and shall be attached to the Lease as Exhibit Y-1.
( c)Construction Contract. Lessor shall enter into a construction contract or contracts with
a reputable contractor or contractors for the construction of the Tower in accordance with the Working Drawings.
All contractors shall have at least IO years of experience in the construction of cellular towers and shall have other
qualifications as agreed upon by Lessor and Lessee. Lessee shall be an express third party beneficiary of all
warranties provided by the contractor relating to the Work, which warranty shall be for not less than a full warranty
repair and replacement of the Tower for a period of two (2) years from the date of Substantial Completion. As
between Lessor and Lessee, Lessor shall be responsible for compliance with all state, federal and local laws in
connection with the Work.
(d)Change Orders. Any changes in the Working Drawings shall be approved by Lessor and
Lessee pursuant to a mutually acceptable Change Order, provided that changes to the Working Drawings that are
less than $5,000 in any single instance and which will not affect the use of the Tower for the Permitted Use may be
approved by the Lessor and Lessor shat I provide notice thereof to the Lessee.
(e)Definitions. As used herein, a "Lessee Delay Day" means each day of delay in the
performance of the Work that occurs (a) because Lessee fails to timely furnish any information or deliver or approve
Site Name: Site_Name Business Unit#: BUN
DocuSign Envelope ID: 5936E5E4-5F48-4E9B-99B5-094DB486F61 B
any required documents such as the Working Drawings, (b) because of any change by Lessee to the Working
Drawings, or (c) because Lessee persistently fails to attend any meeting with Lessor, the architect, any design
professional, or any contractor, or their respective employees or representatives, as may be required or scheduled
hereunder or otherwise necessary in connection with the preparation or completion of any construction documents,
such as the Working Drawings, or in connection with the performance of the Work. As used herein, "Substantial
Completion," "Substantially Completed" and any derivations thereof mean the Tower is substantially completed
(as reasonably determined by both Lessor and Lessee) in substantial accordance with the Working Drawings such
that the Tower is available for the Permitted Use.
(f)Walk-Through; Punchlist. When Lessor considers the Work of the Tower to be
Substantially Completed, Lessor will notify Lessee and, within three business days thereafter, Lessor's
representative and Lessee's representative shall conduct a review of the Tower and identify any necessary touch
up work, repairs and minor completion items that are necessary for final completion of the Work. Neither Lessor's
representative nor Lessee's representative shall unreasonably withhold his or her agreement on punchlist items.
Lessor shall use reasonable efforts to cause the contractor performing the Work to complete all punch list items
within 30 days after agreement thereon.
(g)Costs. Lessor shall bear the entire cost of performing the Work depicted on the Working
Drawings initially submitted to and approved by Lessee.
(h)Construction Representatives. Lessor's and Lessee's representatives for coordination of
construction and approval of change orders will be as follows, provided that either party may change its
representative upon written notice to the other:
[insert Lessor's Representative]
[insert Lessee's Representative]
Site Name: Site Name Business Unit#: BUN
Site Name: Site Name Business Unit#: BUN
DocuSign Envelope ID: 5936E5E4-5F48-4E9B-9985-094D8486F61 B
ExhibitB Order Granting Petition And Quick Take
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DocuSign Envelope ID: 5936E5E4-5F48-4E9B-99B5-094DB486F61 B
ST ATE OF MINNESOTA
COUNTY OF ANOKA
DISTRICT COURT
TENTH JUDICIAL DISTRICT
CASE TYPE: CONDEMNATION
Court File No. 02-CV-20-2515 Hon. Dyanna L. Street City of Columbia Heights,
Petitioner,
vs.
Crown Castle AS LLC; New Cingular Wireless PCS, LLC; Sprint Spectrum Realty Company LP,
ORDER GRANTING PETITION FOR
TRANSFER OF TITLE AND
ACQUISITION OF REAL EST ATE
INTERESTS PURSUANT TO MINN.
STAT.§ 117.042
Respondents.
The above-entitled proceedings came on before the Honorable Dyanna L. Street, Judge of
Anoka County District Court, upon the petition of City of Columbia Heights ("Petitioner") for the
taking of certain real property interests from the above-named Respondents under the power of
eminent domain.
Based upon the files and proceedings herein, the Court makes the following:
FINDINGS OF FACT
I.Petitioner is a municipal corporation duly organized and existing under the laws of
the State of Minnesota.
2.Through its Economic Development Authority ("EDA") duly established and
existing under Minnesota law, Petitioner has responsibility for economic development within the
boundaries of the City of Columbia Heights.
3.Petitioner is authorized by Minnesota law to acquire real estate interests by use of
eminent domain proceedings for public use or purpose.
4.The EDA is the owner in fee simple ofreal property located at 3989 Central Avenue
DocuSign Envelope ID: 5936E5E4-5F48-4E9B-99B5-094DB486F61 B
Northeast, Columbia Heights, Anoka County, Minnesota, ("the Property"). The legal descriptions
and property identification numbers of the parcels comprising the Property are set forth in the
attached Exhibit 1, which is incorporated by reference herein.
5.The EDA purchased the Property subject to one or more agreements for the long-
term lease of a portion of the premises on the rooftop of the sole building ("Building") located on
the Property for wireless communications equipment. The Building is located on the parcel
identified as "Parcel l" on Exhibit 1.
6.The above-named Respondents appear of record or are known to Petitioner to be
the owners of certain lease interests in the Building.
7.Pursuant to authority granted by Petitioner, the EDA entered into a preliminary
development agreement on August 5, 2019 to redevelop the Property and other parcels owned by
the City and/or EDA, which would include demolition of the Building and construction of a new
development, including a new City Hall for Petitioner ("the Project").
8.On September 23, 2019, the City Council voted to establish a new City Hall as
proposed in the Project.
9.On February 24, 2020, by Resolution No. 2020-26 of its governing body, Petitioner
was authorized to acquire the leasehold interests described herein by eminent domain proceedings,
so that it may clear title and proceed with the Project.
10.Before commencing this eminent domain action, Petitioner attempted to resolve
this matter and provided an appraisal of the value of the property interest to Respondents.
11.On June 8, 2020, Respondents were served by certified mail with a Notice of Intent
to Take Title and Acquisition under Minn. Stat. § 117.042. On June 12, 2020, Respondents were
served with notice of hearing and of the right to object to the Petition. Respondents were served
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DocuSign Envelope ID: 5936E5E4-5F48-4E9B-99B5-094DB486F61 B
with an amended notice of hearing on June 23, 2020.
12.On or about August 5, 2020, Respondent Crown Castle AS LLC ("Crown Castle")
filed an objection to the Petition and moved to dismiss the Petition.
13.The parties reached an agreement to resolve all issues related to this eminent
domain matter, including compensation and/or damages. Crown Castle accordingly withdraws its
objection and its motion to dismiss the Petition.
CONCLUSIONS OF LAW
1.Petitioner possesses the right of eminent domain and has properly exercised the
same herein.
2.Petitioner, by resolution of its governing body, has been authorized to acquire the
real property interests described herein by eminent domain proceedings.
3.The acquisition of the real property interests described herein is authorized by
Minnesota law. The taking of the real property interests described herein is for a public use and
purpose as defined by Minn. Stat. § 117.025, subd. 11 and is reasonably necessary to further the
City's public purpose.
4.Pursuant to Minn. Stat. § 117.042, transfer to Petitioner of title and possession of
the real property interests of Respondents in the Property described herein may be ordered
immediately.
5.Payment for compensation and/or damages to Respondents has been agreed upon
by the parties.
WHEREFORE, the Court makes the following:
ORDER AND ORDER FOR JUDGMENT
1.Petitioner's Petition for transfer of title and possession of the Property legally
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DocuSign Envelope ID: 5936E5E4-5F48-4E98-9985-094D8486F618
described on Exhibit 1 and for acquisition of Respondents' real estate interests in the Property is
GRANTED.
2.Crown Castle's Objection to the Petition is dismissed with prejudice. Crown
Castle's motion to dismiss the Petition is withdrawn.
3.Title, possession, and right to acquisition of the real estate interests described herein
shall be transferred to Petitioner's EDA effective immediately, such that any and all lease interests
for the Building and/or Property, including but not limited to Respondents' lease interests, shall
be extinguished and Petitioner's EDA shall have fee title to the Property free and clear of any right,
title, or interest of Respondents.
Dated:
4.Petitioner shall file a final certificate in accordance with Minn. Stat. § 117.205.
Let Judgment Be Entered Accordingly.
BY THE COURT:
----------Hon. Dyanna L. Street
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DocuSign Envelope ID: 5936E5E4-5F48-4E9B-9985-094D8486F61 B
EXHIBIT 1
Parcel 1 (Property Identification No. 36-30-24-32-0110):
Lot 32, Block 6, Reservoir Hills, Anoka County, Minnesota.
Lots 25 through 28, Block 1, Walton's Rearrangement of Lots 33 and 34, Block 6, Reservoir Hills,
Anoka County, Minnesota.
The vacated alley adjacent to Lots 25 through 28, Block 1, Walton's Rearrangement of Lots 33
and 34, Block 6, Reservoir Hills, Anoka County, Minnesota.
Those parts of Lots 28 through 31, Block 6, Reservoir Hills; Lots 23 and 24, Block 1, Walton's
Rearrangement of Lots 33 and 34, Block 6, Reservoir Hills; and of the vacated alley adjacent to
Lot 24, Block 1, Walton's Rearrangement of Lots 33 and 34, Block 6, Reservoir Hills; lying
Southwesterly and Westerly of the following described line: Beginning at a point on the South line
of Block 1, Walton's Rearrangement, said point being 18.00 feet West of the Southeast corner of
Lot 23, of said Block l, Walton's Rearrangement; thence Northerly on a line 18.00 feet West of
and parallel with the East line of Lot 23, a distance of 87.00 feet; thence on a straight line to a point
on the North line of Lot 30 of said Block 6, Reservoir Hills, said point being 4 7.23 feet Easterly
of the Northwest corner of said Lot 30 and there terminating.
The following portion of the above description being registered land:
That part of Lot Twenty-three (23), Block One (1), Walton's Rearrangement of Lots Thirty-three
(33)and Thirty-four (34), Block Six (6), Reservoir Hills, lying southwesterly and westerly of the
following described line: Beginning at a point on the South line of said Block 1, Walton's
Rearrangement, said point being 18.00 feet West of the southeast corner of Lot 23 of said Block
l, Walton's Rearrangement; thence Northerly on a line 18.00 feet West of and parallel with said
east line of Lot 23, a distance of 87 .00 feet; thence on a straight line to a point on the north line of
Lot 30 of said Block 6, Reservoir Hills, said point being 47.23 feet Easterly of the northwest corner
of said Lot 30 and there terminating.
Anoka County, Minnesota
Abstract and Torrens Property
Parcel 2 (Property Identification No. 36-30-24-32-0261):
Those parts of Lots 27 through 31, Block 6, Reservoir Hills and those parts of Lots 23 and 24,
Block 1, Walton's Rearrangement of Lots 33 and 34, Block 6, Reservoir Hills and of the vacated
alley abutting Block 1, "Walton's Rearrangement of Lots 33 and 34, Block 6, Reservoir Hills", as
dedicated in said plat, lying within the following described tract: Commencing at a point on the
South line of said Block 1, Walton's Rearrangement distant 18.00 feet West of the Southeast corner
of Lot 23, said Block 1, Walton's Rearrangement; thence Northerly on a line 18.00 feet West of
and parallel with the East line of said Lot 23, a distance of 87.00 feet, to the actual point of
beginning of the tract to be described; thence continuing Northerly on the extension of said line to
the North line of Block 6, Reservoir Hills; thence Westerly along said North line of Block 6, to a
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DocuSign Envelope ID: 5936E5E4-5F48-4E98-9985-094D8486F618
point being 47.23 feet Easterly of the Northwest corner of Lot 30, Block 6, Reservoir Hills; thence Southeasterly, to the point of beginning;
Excepting therefrom Tract A, Registered Land Survey No. 250, Anoka County, Minnesota.
Abstract Property
Parcel 3 {Property Identification No. 36-30-24-32-0258):
Tract A, Registered Land Survey No. 250, Anoka County, Minnesota.
Torrens Property
6