HomeMy WebLinkAboutCity Council Packet 10-10-2017 SpecialCITY OF PLYMOUTH
AGENDA
SPECIAL COUNCIL MEETING
OCTOBER 10, 2017, 5:30 p.m.
MEDICINE LAKE CONFERENCE ROOM
1. CALL TO ORDER
2. TOPICS
A. Wireless Facilities Right -of -Way Ordinance
3. ADJOURN
Special Council Meeting 1 of 1 October 10, 2017
rp)City of Agenda 2A
Plymouth Number:
Adding Quality to Life
To: Dave Callister, City Manager
SPECIAL
COUNCIL MEETING Prepared by: Lori Sommers, Senior Planner
October 10, 2017 Reviewed by: Steve Juetten, Community Development Director
Item: Wireless Facilities Right-of-Way Ordinance
Minnesota's telecommunications right-of-way user state law (SF14S6), regarding small wireless facilities,
was signed into law on May 30, 2017. It grants wireless service providers access to the public right-of-way
to construct, maintain and operate small wireless facilities and wireless support structures. Various
sections of the city and zoning code need to be amended to be consistent with state law.
The City's right-of-way management ordinance, right-of-way application process, zoning ordinance, and
standard practices will need to comply with the new small cell wireless law. Staff proposes the following
amendments to the code:
1. Amend the right-of-way ordinance (see draft attached).
a. Add provisions for small wireless facilities.
b. Require a permit for small wireless facilities.
c. Add provisions for collocation on existing poles and installation of new structures.
d. Require a standard small wireless facility collocation agreement on city -owned structures
e. Add language regarding new definitions and the permit application process as stipulated in
the state law.
2. Development of a standard small cell wireless facility collocation agreement (see draft attached)
3. Amend the zoning ordinance (to come later)
a. Add language regarding new definitions.
b. Add small wireless facilities and wireless support structures as a permitted use in the right-of-
way for all non-residential districts.
c. Staff is looking for direction from the Council on how to proceed regarding residential right-of-
way zones with the possibility of requiring a conditional use permit.
4. Amend Fees
At this time, a draft of the City's right-of-way management ordinance (section 800) of the city code is
being brought forward for review and discussion. The proposed amendments are being made in
response to state legislation passed on May 30, 2017 regarding local government regulation of "small
wireless facilities," which are small antennas and associated equipment used to provide wireless service
between a network and its users. Under the new legislation, the City cannot prohibit the placement of
such small wireless facilities or structures to support such facilities in the public right-of-way. The City
may, however, require a user to obtain a permit from the city and, if the facility is to be placed on a City -
owned structure, enter into an agreement with the City setting forth the terms and conditions of such
use.
Page 1
The proposed amendments include requiring a permit for the placement of new wireless structures or
collocation of small wireless facilities in the ROW. The city has 90 days to issue or deny a permit. If the
City fails to respond within the time limit, then the permit is deemed approved and the permit is
automatically issued. The deadline can be extended by written notification for 30 days if the City receives
applications for 30 or more sites within 7 days or an application is incomplete. Any denial of an
application must be in writing and state the basis for the denial within 3 business days. Staff proposes
that these deadlines be incorporated into the code, as it is important that the City keep track of staff time
devoted to these permit requests.
The law allows the City to charge rent of up to $150 annually, plus $25 for maintenance for each site to
occupy space on a support structure owned by the City. An additional fee can be charged, if purchasing
electricity, rather than metering.
The City can still enter into a separate collocation agreement with wireless providers. This allows the City
to negotiate different rent amounts (within the confines of the law) and address specific situations, such
as indemnity, insurance, waiver of liability, and removal. If the City wants a collocation agreement in
place then one must be available no later than 6 months after May 31, 2017 (November 30, 2017) or
three months after receiving a small wireless facility permit application from a provider.
The state law sets the maximum height of 50 feet and maximum size of 28 cubic feet plus a 6 cubic feet
antenna for a small wireless facility. Although, not consistent with the statutory requirements, the City is
also proposing to add in design controls and minimum separation distances between small wireless
facilities. At this time the wireless companies in conversations with staff have been willing to work with
the City to come up with designs and locations compatible with the City's vision.
Under the law, these small wireless facilities are deemed a permitted use in any public right-of-way,
except that a city may require a conditional use permit (CUP) and go through the process if they wish to
locate in a single-family residential district or a historic district. Staff is looking for direction from the
Council on how to proceed with small cell wireless facilities wishing to locate in a residential district: 1)
bring forward an amendment that would require a CUP in a residential district, or 2) not require a CUP
for projects in a residential district. Some things to consider during your discussion are 1) the City cannot
prohibit small cell wireless from being installed in the ROW of a residential area, 2) the City is bound by
the state regulations on size, type and location.
The City has had three inquires (Mobilitie, SACW, Zayo Group) on placing small cell wireless facilities in
the right-of-way and what the next steps are in the process. One is looking to locate on existing light
poles and another is looking to place their own wood pole in the right-of-way along Plymouth Boulevard
in front of Life Time Fitness.
To better understand the other possible types of small cell wireless facilities that could be installed, a
series of pictures have been provided.
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Page 10
CHAPTER VIII: RIGHT-OF-WAY MANAGEMENT
Section 800 — Construction in Streets, Alleys and Public Grounds
Subd. 10. Revocation of Permits.
A. Grounds for Revocation. The City may revoke a permit issued hereunder on the
following grounds:
1. A material provision or condition of the permit or the Code was substantially
breached.
2. A material misrepresentation in the application for a permit.
3. The permittee failed to maintain the required bonds or other security and
insurance.
4. The permittee failed to complete the project work within the time specified in
the permit unless the failure to complete work is due to reasons beyond the
permittee's control.
5. The permittee failed in a timely manner to correct work that does not conform to
applicable standards, conditions, federal, state or local laws.
6. An evasion or attempt to evade any material provision of the public right-of-way
permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the
City.
B. Notice of Revocation. If the Director determines that grounds for revocation exists, the
Director shall provide written notice to the permittee. If the permittee's violation is related
to non -complying project work, the Director shall notify the permittee of the actions
necessary to remedy such violation within a reasonable period of time or be subject to
potential revocation of the permit. The Director may impose additional or revised
conditions on the permit to mitigate or remedy the violation.
C. Right to Hearing by Council. In the event that the permittee fails to remedy the violation
for which the Director gave the permittee notice, a revocation of permit hearing shall be
held before the Council at the next available Council meeting. The purpose for the hearing
shall be to determine whether any of the grounds for revocation as set forth herein exist
against the permittee. No suspension or revocation shall take effect, until the permittee has
been afforded a hearing as provided in this subparagraph. Such hearing shall be set by the
Council upon written notice to the permittee served by U.S. Mail not less than 15 days
prior to the hearing date, specifically stating the date, time and purpose thereof.
D. Revocation Costs. If a permit is revoked, the permittee shall reimburse the City for its
reasonable costs (including restoration costs) incurred in connection with the revocation.
Subd. 11. Small Wireless Facilities.
A. Purpose and Findings. The Citv desires high auality wireless services to accommodate
the needs of residents and businesses. At the same time, the City strives to minimize the
negative impacts that small wireless facilities can create. These negative impacts include,
but are not limited to, interference with right-of-way user sight lines, impacts to right-of-
way
i hg tof-
way user circulation, incompatible aesthetics with the surrounding area, fall zone risk, clear
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Page 11
zone risk, creating navigation obstacles, interference with future travel way expansion plans,
interference with the delivery of other utility services, interference with stormwater
management facilities, and increased noise pollution.
To minimize these negative impacts, any person desiring to place a new wireless support
structure in the right-of-way or collocate small wireless facilities on existing �privately-
owned wireless support structures in the right-of-way shall first obtain a small wireless
facility permit from the City. Any person desiring to collocate small wireless facilities on
existing wireless support structures owned or controlled by the City shall first enter into a
standard small wireless facility collocation agreement. The purpose of these requirements
is to comply with Minnesota Statutes Sections 237.162 and 237.163 while at the same time
protecting the public health, safety, and welfare.
The City will consider impacts to the public health, safety and welfare when reviewing a
small wireless permit application and a request to enter into a small wireless facility
collocation agreement. The public health, safety and welfare can be best accommodated by
locating small wireless facilities in the following order, which affords theerg atest protection
of the public:
1. Locate outside of the right-of-wa.
2. Locate in the right-of-way on or adjacent to Principal Arterial, Other Arterial,
Major Collector, or Minor Collector roads, as classified by the Metropolitan
Council Functional Classification System.
3. Collocate on existing wireless support structures within the right-of-waL.
4. Locate on a new wireless support structure within the right-of-way that replaces an
existing wireless support structure of the same height.
5. Locate on a new wireless support structure within the right-of-way that replaces an
existing wireless support structure whose height is less than or equal to 50 feet.
6. Locate on a new wireless support structure within the right-of-way whose height is
similar to nearby structures.
7. Locate on a new wireless support structure within the right-of-way whose height is
less than or equal to 50 feet.
The City will also consider factors such as aesthetic compatibility of the small wireless
facility with surrounding structures, ability to eliminate, underground, or screen
ground -mounted equipment, dangers within the small wireless facility fall zone,
distance of the small wireless facility from roads, sidewalks, trails and bicycle lanes,
and future roadway, pedestrian, bicycle, water, wastewater, and stormwater
improvement plans for the site before issuing small wireless facilitypermit or entering
into a standard small wireless facility collocation agreement.
B. Small Wireless Facility Permit. No person may place a new wireless support structure
within the right-of-way or collocate a small wireless facility on an existing privately -owned
wireless support structure in the right-of-way without first obtaining a small wireless facility
permit from the City_
Page 12
1. Permit Application and Fee. A written application for a small wireless facility
permit shall be submitted to the Director on a form provided by the City. The
agpplicant shall pay an application fee in the amount set forth in Section 1015.27
Subdiv. 1. The application will be processed in accordance with the requirements
of Minnesota Statutes 237.163, subd. 3c(b) and (c).
2. Consolidated Permit Application. An applicant may file a consolidated permit
application to collocate up to fifteen (15) small wireless facilities, provided that the
small wireless facilities in the application:
(a) are located within a two-mile radius;
(b) consist of substantially similar equipment; and
(c) are to be placed on similar types of wireless support structures.
3. Permission from Owner. If the applicant seeks to collocate a small wireless
facility on an existing wireless support structure, the applicant shall, at the time of
agpplication, provide the City with proof that it has obtained the necessary authority
from the owner of the wireless sunnort structure to collocate the small wireless
facility on the structure.
4. Issuance of Permit and Conditions. Upon the Director's determination that the
applicant has satisfied the requirements of this Section, the Director shall issue the
small wireless facility permit within ninety (90) days of receiving a completed
application. If the City receives applications within a single seven-day period from
one or more applicants seeking approval of permits for more than 30 small wireless
facilities, the City may extend in writing the 90 -day deadline imposed in state law
by an additional 30 days. The Director may condition permit approval on
compliance with the following:
(a) generally applicable and reasonable health, safety, and welfare regulations
consistent with the City's authority to manage its public right -of -waw
(b) reasonable accommodations for decorative wireless support structures or signs;
and
(c) any reasonable restocking„ replacement, or relocation requirements when a new
wireless support structure is placed in the right-of-way.
In rendering a decision on a consolidated permit application, the Director may
approve a permit for some small wireless facilities and deny a permit for others, but
may not use denial of one or more permits as a basis to deny all the small wireless
facilities in the consolidated application.
5. Permit Denial. The Director may deny a small wireless facility permit if he or
she reasonably determines that the applicant has not satisfied the requirements of
this Section or that approval of the permit would be contrary to - generally applicable
Page 13
and reasonable health, safety, and welfare regulations. The City shall notify the
applicant in writing within three (3) business days of its decision to deny the permit.
Upon denial, the applicant may cure the deficiencies identified by the City an
resubmit its application. If the applicant resubmits the application within thirty (30)
days of receiving written notice of the denial, no additional filing or processing fee
shall be required. The City shall approve or deny the revised application within
thirty (30) days after the revised application is submitted.
6. Notice of Revocation. If the Director determines that ,grounds for revocation
exists, the director shall provide written notice to the permittee documenting the
basis for the revocation. The City must notify a telecommunications right-of-way
user in writing within three business days of the decision to revoke a permit. If the
permittee's violation is related to non -complying project work, the Director shall
notify the permittee of the actions necessary to remedy such violation within a
reasonable period of time or be subject to potential revocation of the permit. The
Director may impose additional or revised conditions on the permit to mitigate or
remedy the violation.
7. Term. The term of a small wireless facility permit shall be equal to the length of
time that the small wireless facility is in use, unless earlier revoked under this
Section.
8. Obstruction or Excavation. A small wireless facility permit holder whose
approved work in the right-of-way involves obstruction or excavation of the right-
of-way
ight-
ofway shall also obtain a right-of-way permit from the City.
9. Requirements for New Wireless Support Structures. New wireless support
structures that comply with the following requirements may be placed in the right-
of-way after the issuance of a small wireless facility permit:
(a) A new wireless support structure shall not exceed fifty 50) feet aboveground
level, subject to the requirements of City Code Chapter 8, and shall be separated
from other wireless support structures by a minimum of six hundred (600) feet.
(b) Notwithstanding subsection (1), a new wireless support structure that replaces
an existing wireless support structure that is higher than 50 feet above ground level
may be placed at the height of the existing wireless support structure, subject to the
requirements of City Code Chapter 8.
(c) The diameter of a new wireless support structure that replaces an existing
wireless support structure shall not exceed the diameter of the existing wireless
support structure by more than fifty percent ,5/o .
(d) Wireless facilities constructed in the right-of-way after May 31, 2017 shall not
extend more than ten (10) feet above an existing wireless support structure in place
as of May 31, 2017.
Page 14
Subdiv. 12. Requirements for Small Wireless Facilities. A small wireless facility that complies
with the following requirements may be located on a new wireless support structure within the
right-of-way or collocated on an existing privately -owned wireless support structure within the
right-of-way after issuance of a small wireless facility_ permit:
A. The small wireless facility shall have limited exposed cabling and mounting hardware.
It shall also match the wireless support structure it is attached to in color and, as close as
practicable, in material and design.
B. The small wireless facility shall not interfere with public safety wireless
telecommunications.
C. Small wireless facilities in the right-of-way shall be removed and relocated at the City's
request and at no cost to the City when the Director determines that removal and relocation
is necessary to prevent interference with: (1) present or future City use of the right-of-way
for a public project; (2) the public health, safety, or welfare; or (3) the safety and
convenience of travel over the right-of-wa.
D. A small wireless facility attached to an existing wireless support structure shall not block
light emanating from the wireless support structure and shall not otherwise interfere with
the original use of the wireless support structure.
E. Ground -mounted equipment associated with the small wireless facili . is prohibited
unless the applicant can show that ,ground -mounted equipment is necessary for operation
of the small wireless facility. If ground -mounted equipment is necessary, it shall comply
with the provisions of City Code Chapter 8, and shall also meet the following standards:
1. Ground -mounted equipment shall be placed below ,grade unless not technically
feasible;
2. Ground -mounted equipment shall not disrupt traffic or pedestrian circulation and
shall not interfere with vehicle and pedestrian intersection sight lines;
3. Ground -mounted equipment shall not create a safety hazard;
4. If placed above grade, ,ground -mounted equipment shall be separated from the
nearest ground -mounted equipment on the same block face by a minimum of 330
feet unless the equipment is placed underground, or unless waived by the Director;
5. If placed aboverg ade, ,ground -mounted equipment shall be limited to three (3)
feet in height and twenty-eight 28) cubic feet in cumulative size; and
Subdiv. 13. Exemptions. No small wireless facility_ permit is required to conduct the following
activities in the right -of -waw
Page 15
A. Routine maintenance of a small wireless facility;
B. Replacement of a small wireless facility that is substantially similar or smaller in size,
weight, height, and wind or structural loading than the small wireless facility being
replaced; or
C. Installation, placement, maintenance, operation, or replacement of micro wireless
facilities that are suspended on cables strung between existing tility poles in compliance
with national safety codes. If any of the above activities will obstruct the right-of-way,
small wireless facility_ permit holder shall provide notification to the City at least ten (10)
days in advance of such activity.
Subdiv. 14. Collocation on City -Owned Wireless Support Structure. No person may collocate
a small wireless facility on an existing wireless support structure owned or controlled by the City
without first entering into a Standard Small Wireless Facility Collocation Agreement with the City.
Subdiv. 15. New Structures. The erection in the public right-of-way of a new public utility
structure to support wireless facilities other than small wireless facilities is prohibited, except
where the Director determines there is a need for additional roadway lighting emergency warning
siren, or other infrastructure that must be supported by a public utility structure. Any new structure
erected to support wireless facilities other than small wireless facilities allowed by the Cit., under
this para�_raph and any associated or attached equipment must comply with the requirements of
this Section.
Subdiv. 16. Other Wireless Facilities. A telecommunications right-of-way user who desires to
place a new public utility structure or wireless facilities other than small wireless facilities in the
right-of-way shall enter into a license agreement with the City for use of space that sets forth such
terms and conditions as the City deems appropriate and shall obtain any necessary right-of-waX
permit.
Subd. 4417. Permit Fees. All permit fees shall be submitted to the City with the application. Permit
fees shall be set to recover the City management costs and, where applicable, restoration costs.
The permit fees shall be established by this ordinance and Chapter 10 of the Code. No permit fee
shall be refundable. No permit fees shall be required for any obstruction or excavation permit
issued to the City, although the City shall be allocated its full portion of the City management costs
in calculating the permit fees. Except where an extension permit has been granted, the permittee
shall, as a delay penalty, be required to obtain a new permit and pay the associated fee for failure
to complete the project work under the initial permit within the required time period or pay the
delay penalty per the right-of-way ordinance. Applicants may jointly apply for permits to excavate
or obstruct the right-of-way at the same place and time. There shall be a single permit and permit
fee for joint excavation and obstruction permit applications. Applicants must agree among
themselves as to the portion each will pay and indicate the same on the application.
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Page 16
STANDARD SMALL WIRELESS FACILITY
COLLOCATION AGREEMENT
This Standard Small Wireless Facility Collocation Agreement (the "Agreement") made this _ day of
, 2017, between the City of Plymouth, Minnesota, with its principal offices located at 3400
Plymouth Boulevard, Plymouth, MN 55447, hereinafter designated CITY, and with its
principal offices located at (telephone number ), hereinafter
designated USER. CITY and USER are at times collectively referred to hereinafter as the "Parties" or
individually as the "Party."
WITNESSETH
WHEREAS, CITY is the owner of, or holds a leasehold or other possessory interest in, certain wireless
support structures, which are located within the geographic area of a license to provide wireless services
licensed by the Federal Communications Commission; and
WHEREAS, USER desires to collocate small wireless facilities in and/or upon certain of CITY'S wireless
support structures located within the public right-of-way ("ROW") and/or install new wireless support
structures in the ROW; and
WHEREAS, CITY and USER desire to enter into this Agreement to define the general terms and conditions
which govern their relationship with respect to particular sites at which USER may collocate the small
wireless facilities as hereinafter set forth; and
WHEREAS, CITY and USER acknowledge that they will enter into a supplement to this Agreement
("Supplement"), a copy of which is attached hereto as Exhibit "A", with respect to each particular location
or site which CITY agrees to permit collocation.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the adequacy and
sufficiency of which is hereby acknowledged, the parties hereto, for themselves, their successors and
assigns, do hereby covenant and agree as follows:
I. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following definitions:
a. "Collocate" or "collocation": to install, mount, maintain, modify, operate, or replace a small wireless
facility on, under, within, or adjacent to an existing wireless support structure that is owned privately or
by the City or other local government unit.
b. "Equipment": wireless facilities and small wireless facilities, as those terms are defined in this
Agreement.
c. "Small wireless facility":
(1) a wireless facility that meets both of the following qualifications:
(i) each antenna is located inside an enclosure of no more than six cubic feet in volume or, in the
case of an antenna that has exposed elements, the antenna and all its exposed elements could
fit within an enclosure of no more than six cubic feet; and
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194421v1
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(ii) all other wireless equipment associated with the small wireless facility, excluding electric
meters, concealment elements, telecommunications demarcation boxes, battery backup
power systems, grounding equipment, power transfer switches, cutoff switches, cable,
conduit, vertical cable runs for the connection of power and other services, and any
equipment concealed from public view within or behind an existing structure or concealment,
is in aggregate no more than 28 cubic feet in volume; or
(2) a micro wireless facility.
d. "Utility pole": a pole that is used in whole or in part to facilitate telecommunications or electric service.
e. "Wireless facility":
(1) equipment at a fixed location that enables the provision of wireless services between user
equipment and a wireless service network, including:
(i) equipment associated with wireless service;
(ii) a radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup power
supplies, and comparable equipment, regardless of technological configuration; and
(iii) a small wireless facility.
(2) "Wireless facility" does not include:
(i) wireless support structures;
(ii) wireline backhaul facilities; or
(iii) coaxial or fiber-optic cables (i) between utility poles or wireless support structures, or
(ii) that are not otherwise immediately adjacent to or directly associated with a specific
antenna.
f. "Micro wireless facility": a small wireless facility that is no larger than 24 inches long, 15 inches wide,
and 12 inches high, and whose exterior antenna, if any, is no longer than 11 inches.
g. "Wireless service": any service using licensed or unlicensed wireless spectrum, including the use of Wi-
Fi, whether at a fixed location or by means of a mobile device, that is provided using wireless facilities.
Wireless service does not include services regulated under Title VI of the Communications Act of 1934, as
amended, including a cable service under United States Code, title 47, section 522, clause (6).
h. "Wireless support structure": a new or existing structure in a public right-of-way designed to support
or capable of supporting small wireless facilities, as reasonably determined by the City.
i. "Wireline backhaul facility": a facility used to transport communications data by wire from a wireless
facility to a communications network.
II. USER REQUEST TO USE PREMISES
a. Before USER shall collocate any Equipment on CITY'S wireless support structures or install a new
wireless support structure, as shall be more fully described in each Supplement to be executed by the
Parties, hereinafter be referred to as the "Premises" under this Agreement, USER shall request permission
from CITY in writing on the form attached hereto as Exhibit "B", which writing shall include a draft
Supplement, and shall comply with the procedures set forth in this section.
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194421v1
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b. USER may submit a consolidated request to CITY for permission to collocate up to fifteen (15) small
wireless facilities, provided that the small wireless facilities in the consolidated request: (1) are located
within a two-mile radius; (2) consist of substantially similar equipment; and (3) are to be placed on similar
types of wireless support structures. Such consolidated request shall include a separate draft Supplement
for each small wireless facility.
c. Approval of this Agreement by CITY shall be in the form of an approved City Council Resolution.
Following said approval of this Agreement, each individual Supplement may be approved by the City
Manager or his/her designee.
d. USER shall have the non-exclusive right, at its sole cost and expense, to use the Premises, as identified
in each individual Supplement, for the purpose of collocating equipment on CITY's wireless support
structure(s) or installing new wireless support structure(s) and uses incidental thereto, in a manner
consistent with each Supplement ("Approved Use").
e. Regarding USER'S application for each individual Supplement: If, in the judgment of CITY, USER'S use
under the circumstances is undesirable based on generally applicable and reasonable health, safety, and
welfare concerns, CITY shall have the right to reject the application. In any event, within ninety (90) days
after the receipt of a complete application CITY shall notify USER in writing whether the application is
approved or rejected and, if rejected, shall document the basis for the rejection. If CITY does not notify
USER within ninety (90) days the application shall be deemed approved. USER shall use the Premises only
in accordance with good engineering practices and in compliance with all applicable Federal
Communications Commission ("FCC"), federal, state, and local rules, laws and regulations.
f. Along with each application for an individual Supplement, USER shall furnish CITY detailed Construction
Plans and drawings for each individual Premises, together with necessary maps, indicating specifically the
wireless support structures of CITY to be used, the number and character of the small wireless facilities to
be placed on such structures, Equipment necessary for USER'S use, replacements of existing wireless
support structures, any additional wireless support structures which may be required, and any new
installations for transmission conduit, pull boxes, and appurtenances (the "Work"). The Parties shall
execute a Supplement for each Premises. Upon execution of the Supplement, USER shall have the right to
use the Premises and proceed with the Work in accordance with the terms of the Application, Plans,
Supplement and this Agreement. USER shall perform all Work at its own expense and in such manner as
to not interfere with CITY's use of the Property or the Premises.
g. All wireless support structures used by USER under this Agreement, including wireless support
structures installed by USER, shall remain the property of CITY (unless otherwise specified in the individual
Supplement), and any payments made by USER for changes to existing wireless support structures,
conduits, conductor pull boxes, facilities, and appurtenances, or installation of any new wireless support
structures, conduits, conductor pull boxes, facilities, or appurtenances, under this Agreement shall not
entitle USER to ownership of any of said infrastructure (unless otherwise specified in the individual
Supplement supplement).
h. CITY reserves the right to exclude any of CITY's wireless support structures, conduits, conductor pull
boxes, appurtenances, public ROW and/or real property from use by USER if CITY determines that USER's
proposed use is contrary to generally applicable and reasonable health, safety, and welfare regulations.
III. PREMISES.
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194421v1
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Pursuant to all of the terms and conditions of this Agreement, and the applicable Supplement, CITY may
approve USER's application for a particular Premises described in the Supplement, for the installation,
operation and maintenance of Equipment; together with the non-exclusive right of ingress and egress
from a public ROW, seven (7) days a week, twenty-four (24) hours a day, over the Property (as defined
below) to and from the Premises. The entirety of CITY's ROW and real property is referred to herein as
the "Property'. The primary use and purpose of the Property, inclusive of the Premises, is to provide for
traffic control, street lighting and other governmental purposes ("Primary Use"). CITY's operations take
priority over USER's operations. USER agrees that the following priorities of use, in descending order, shall
apply in the event of communication interference, emergency public safety needs, Premises repair or
reconditioning, or other conflict while this Agreement is in effect, and USER's use shall be subordinate
accordingly:
(1) CITY, its employees, agents and contractors;
(2) Public safety agencies, including law enforcement, fire, and ambulance services that are not
related to CITY;
(3) Other governmental agencies where use is not related to public safety;
(4) Pre-existing licensees or permittees of CITY (if any);
(5) USER referenced in this Agreement.
When an event occurs that poses an immediate threat of substantial harm or damage to the health, safety
and welfare of the public and/or the Property/Premises, as solely determined by CITY ("Jeopardy'), the
CITY may take actions the CITY determines are required to address such Jeopardy provided that promptly
after such actions that affect the Premises, and in no event later than seventy-two (72) hours after such
actions, CITY gives written notice to USER of CITY's emergency actions.
If CITY determines that the conditions of a Jeopardy would be benefited by cessation of USER'S operations,
USER shall immediately cease its operations on the Premises upon notice from CITY to do so, and the Term
(as defined herein) of the applicable Supplement shall be suspended until the conditions of Jeopardy have
ended.
In the event there are not sufficient electric, telephone, cable, or fiber utility sources located at the
Premises or on the Property, USER may request approval from the CITY, by submitting to CITY a written
plan for installation, to install such utilities on, over and/or under the Property and to the Premises as
necessary for USER to operate in accordance with its Approved Use. CITY shall, in its sole discretion, notify
USER that it approves, denies or modifies the plan within thirty (30) business days of receipt of the same,
and in the case of any denial or modification CITY shall state the reasons therefor.
USER must, at the time of application and at any future time as requested by CITY, obtain and submit to
CITY a structural engineering study carried out by a qualified structural engineer, showing that the wireless
support structure(s) is (are) able to support the Equipment. Said study must be signed by an engineer
licensed in Minnesota per State Rule 1800.4200 and Minnesota Statutes Chapter 326. If the study finds
that any proposed structure is inadequate to support the proposed loads, USER shall not install the
Equipment and the approval for the Premises at issue shall terminate.
IV. INSTALLATION OF EQUIPMENT
a. Construction Plans
For the initial installation of all Equipment and for any and all subsequent revisions and/or modifications
thereof, or additions thereto, at the time of application for each individual Supplement USER shall provide
CITY with two (2) sets of construction plans ("Construction Plans") consisting of the following:
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Line or CAD drawings showing the location and materials of all planned installations plus an Engineer's
Estimate of all materials and construction methods;
Construction Specifications and Product Specifications for all planned installations;
Diagrams and Shop Drawings of proposed Equipment;
A complete and detailed inventory of all Equipment and other personal property of USER actually placed
on the Premises. CITY retains the right to survey the installed Equipment.
Any initial engineering survey and preparatory construction work associated with collocation must be paid
by the cost causer in the form of a onetime, nonrecurring, commercially reasonable, nondiscriminatory,
and competitively neutral charge to recover costs associated with a proposed attachment.
Construction Plans shall be easily readable and subject to prior written approval by CITY, which shall not
be withheld, conditioned or delayed without cause. In accordance with Section II.e, above, CITY shall have
ninety (90) days to review and comment on the Construction Plans. Should the Construction Plans need
to be revised based on the comments provided by CITY, no construction shall commence until final
approval is granted by CITY. Final Construction Plans shall have affixed to them the signature of USER'S
engineer who shall be licensed in the State of Minnesota pursuant to Minnesota Rule 1800.4200 and
Minnesota Statutes Chapter 326.
b. Construction Scheduling
At least ten (10) business days prior to USER'S construction mobilization, USER shall conduct a meeting
on the Property or other location as agreed upon. Said meeting shall at a minimum be attended by a
representative of CITY and all parties involved in the installation.
c. Construction Inspection
All construction activity shall be subject to inspection and approval by CITY. Inspection may be performed
at any time during the course of the construction activity reasonably determined by CITY, at USER'S
expense. Construction work performed without approval of CITY will not be accepted and shall be
removed or uninstalled at USER'S sole expense. USER shall be solely responsible for all costs associated
with said inspection and approval of Work by CITY.
d. Exposed Equipment
All Equipment affixed to a wireless support structure on the Premises which has exterior exposure shall
be as close to the color of the structure as is commercially available to the USER. For exposed cables, wires
or appurtenances, CITY reserves the right to require USER to provide cables, wires or appurtenances in
manufactured colors which are commercially available, in lieu of painting.
e. Damage by USER
Any damage to the Property, the Premises, or CITY's wireless support structures or equipment thereon
caused by USER in any manner shall be repaired or replaced at USER'S expense and to CITY's satisfaction.
f. As -Built Drawings
Within thirty (30) days after USER activates the Equipment, USER shall provide CITY with an As -Built
drawing in electronic file format compatible with CITY's record file system consisting of As -Built drawings
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of the Equipment installed at the Premises and on any of the Property, which shall show the actual location
of all Equipment. Said drawings shall be accompanied by a complete and detailed site survey of the
Property and an inventory of all Equipment.
g. Permits
USER may also be required to obtain from CITY, or the appropriate governing agency as applicable, any
and all permits required for a complete installation. Said permits shall include, but not be limited to: Right
of Way permit for obstruction or excavation of the ROW, Meter Hooding, Storm Water, etc. Applicable
fees for any permits shall be borne by USER and USER shall be bound by the requirements of said permits.
h. New Wireless Support Structures
If CITY permits USER to install a new wireless support structure in the ROW, such wireless support
structure shall not exceed fifty (50) feet above ground level, subject to local zoning regulations, and shall
be separated from other wireless support structures by a minimum of 600 feet. If CITY permits USER to
install a new wireless support structure that replaces an existing wireless support structure that is higher
than fifty (50) feet above ground level, the replacement structure may be placed at the height of the
existing structure.
V. MAINTENANCE AND REPAIR OF EQUIPMENT
a. Property
CITY reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain,
alter, or improve the Property.
b. Structure Reconditioning and Repair
(1) From time to time, CITY paints, reconditions, or otherwise improves or repairs the Property or wireless
support structures or improvements thereon ("Reconditioning Work"). CITY shall reasonably cooperate
with USER to carry out Reconditioning Work in a manner that minimizes interference with USER'S
Approved Use.
(2) Except in cases of emergency, prior to commencing Reconditioning Work, CITY shall provide USER with
not less than thirty (30) days prior written notice thereof. Upon receiving such notice, it shall be the sole
responsibility of USER to provide adequate measures to cover or otherwise protect the Equipment from
the consequences of such activities, including but not limited to paint and debris fallout. CITY reserves the
right to require USER to remove all Equipment during Reconditioning Work.
(3) During CITY's Reconditioning Work, and after approval by CITY in its sole discretion, USER may maintain
a mobile site on the Premises or on any land owned or controlled by CITY in the immediate area of the
Premises determined suitable by CITY. If the Premises will not accommodate mobile equipment, it shall
be USER'S responsibility to locate auxiliary sites.
(4) USER may request a modification of CITY'S procedures for carrying out
Reconditioning Work in order to reduce the interference with USER'S Approved Use. If CITY agrees to the
modification, USER shall be responsible for all incremental cost related to the modification.
c. Premises
USER shall, at its own cost and expense, maintain the Equipment in good and safe condition, and in
compliance with applicable fire, health, building, and other life safety codes.
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USER shall obtain from CITY any and all permits required for the purposes of maintaining the Equipment.
Applicable fees for any permits shall be borne by USER and USER shall be bound by the requirements of
said permits.
d. Notice of completion of Maintenance and Repair
CITY shall provide notice to USER when the Reconditioning Work has been completed, after which USER
may, at its own cost, remove any measures installed to cover or protect the Equipment. Within ten (10)
days of said notice, USER shall remove any mobile site placed on the Premises or any other land owned
by CITY or any auxiliary site within Plymouth.
VI. CONDITION OF PREMISES.
Where the Premises includes one or more wireless support structures, CITY will keep and maintain the
wireless support structures in good repair as required for its Primary Use and in the ordinary course of
business as its budget permits. CITY makes no warranty or guarantee as to the condition of any Premises
with regard to USER'S intended use. If the Supplement for the Premises identifies USER as the owner of
the wireless support structure, then USER shall keep and maintain the facility in a good state of repair.
VII. TERM; RENTAL.
This Agreement shall be for a term of ten (10) years commencing upon the execution hereof by both
Parties. Each Supplement shall be effective as of the date of execution by both Parties (the "Effective
Date"). The initial term of each Supplement shall be for five (5) years and shall commence based upon the
date USER commences installation of the equipment on the Premises. In the event the date USER
commences installation of the equipment on the Premises falls between the 11t and 15th of the month,
the initial term of the Supplement shall commence on the 1St of that month and if the date installation
commences falls between the 16th and 31st of the month, then the initial term shall commence on the
1St day of the following month (either the "Commencement Date"). On the Commencement Date of each
Supplement, rental payments shall commence and be due at a total annual rental as set forth in each
Supplement, to be paid to CITY as set forth below. CITY and USER acknowledge and agree that the initial
rental payment for each Supplement may not actually be sent by USER until forty-five (45) days after the
Commencement Date.
To reimburse CITY for its costs related to the management of the Premises, USER shall pay to CITY a Base
Rent ("Base Rent") equal to One Hundred Seventy -Five and No/100 Dollars ($175.00) per year for rent
and maintenance of each Premises (i.e„ wireless support structure) upon which USER has installed the
Equipment. USER shall furnish and install an electrical meter at the Property for the measurement of
electrical power used by USER'S installation and shall pay the electric service provider directly for the cost
of electricity used by USER.
On all Supplements with a Commencement Date other than January 1, the first year's Base Rent shall be
prorated to the end of the year in which the Commencement Date occurs. Similarly, for all Supplements
that expire or otherwise terminate on a date other than December 31, the Base Rent shall be prorated
from the beginning of the year to the end of the month in which the Supplement expires or otherwise
terminates. Subsequent to the initial payment of pro -rated rents in the year of the Commencement Date,
the Base Rent due hereunder for all subsequent years shall be paid prior to January first (1st) of each
succeeding year.
In addition, the parties acknowledge and agree that USER shall pay to CITY a one-time, lump -sum
administrative/application fee of Two Thousand Five Hundred Dollars ($2,500.00) for this Agreement
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upon execution of this Agreement by both parties. The administrative/application fee shall reimburse CITY
for its reasonable staff and legal costs incurred in drafting, reviewing, and processing this Agreement and
any Supplements.
The parties further acknowledge and agree that, pursuant to Minn. Stat. § 237.163, subd. 6, CITY may
charge to USER, and USER shall pay to CITY, a reasonable fee in an amount to be determined by CITY when
USER causes CITY to incur costs as a result of actions or inactions of USER.
Upon agreement of the Parties, USER may pay Base Rent by electronic funds transfer and in such event,
CITY agrees to provide to USER bank routing information for such purpose upon request of USER.
VIII. EXTENSIONS.
This Agreement may be extended three (3) additional five (5) year terms by mutual agreement between
CITY and USER. Any such extension shall be memorialized in writing. Absent an extension in writing this
Agreement shall terminate at the end of the then current term. Each Supplement shall automatically be
extended for one (1) additional five (5) year term unless USER terminates the Supplement at the end of
the initial five (5) year term by giving CITY written notice of the intent to terminate at least three (3)
months prior to the end of the initial term; provided however, each Supplement shall terminate
automatically upon the expiration or termination of this Agreement. The initial term and all extensions
under this Agreement or a Supplement shall be collectively referred to herein as the "Term."
IX. USE; GOVERNMENTAL APPROVALS.
USER shall use the Premises only for the Approved Use. It is understood and agreed that USER'S
permission to use the Premises is contingent upon its obtaining and maintaining all of the certificates,
permits and other approvals (collectively the "Governmental Approvals") that may be required by any
Federal, State or other governmental authorities as well as a satisfactory structural analysis, and a radio
frequency analysis as stated in "ENVIRONMENTAL" below. CITY shall cooperate with USER in its effort to
obtain such approvals. In the event that (i) any application for such Governmental Approvals should be
finally rejected; (ii) any Governmental Approval issued to USER is canceled, expires, lapses, or is otherwise
withdrawn or terminated; or (iii) USER determines that such Governmental Approvals may not be
obtained in a timely manner, USER shall have the right to terminate the applicable Supplement. Notice of
USER'S exercise of its right to terminate shall be given to CITY in accordance with the notice provisions set
forth herein and shall be effective upon the later of: (a) the receipt of such notice as set forth in NOTICE
below;
(b) upon such later date as designated by USER; or (c) upon USER'S removal of the Equipment as required
herein. All rents and costs paid to said termination date shall be retained by CITY. Upon such termination,
the applicable Supplement shall be of no further force or effect except to the extent of the
representations, warranties and indemnities made by each Party to the other thereunder. Otherwise, the
USER shall have no further obligations for the payment of rent to CITY for the terminated Supplement.
X. INDEMNIFICATION.
USER shall, to the extent permitted by law, indemnify, defend and hold CITY harmless against any claim
of liability or loss from personal injury or property damage resulting from or arising out of the use of the
Property and/or the Premises by USER, its employees, contractors or agents, except to the extent such
claims or damages may be due to or caused solely by the negligence or willful misconduct of CITY, or its
employees, contractors or agents.
XL INSURANCE.
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a. Notwithstanding any provision of this Agreement to the contrary, CITY and USER each hereby release
and waive all rights of subrogation against the other, its officers, directors, employees and agents from
any and all loss, damages or liability covered under any policy of insurance required to be maintained by
this Agreement, including deductibles or retentions, notwithstanding that such loss, damages or liability
may have arisen from the negligence, tortious act or omission of the other party, or anyone for whom
such party may be responsible, provided however this provision is effective only upon the condition that
the applicable policy of insurance which covers any such claim contains by endorsement a waiver of
subrogation as to the other party. Each Party shall provide to the other upon execution hereof a Certificate
of Insurance that contains an endorsement waiving subrogation as to the other Party.
b. USER agrees that at its own cost and expense, it will maintain commercial general liability insurance
with limits of $4,000,000 per occurrence for bodily injury (including death) and $4,000,000 general
aggregate. USER will provide Certificates of Insurance evidencing the coverage required and including CITY
as an additional insured as its interest may appear under this Agreement. The insurance policies shall be
issued by a company (rated A: VII or better by Best Insurance Guide) licensed, authorized or permitted to
do business in the State of Minnesota. The policies shall specify that the coverage will be the primary and
noncontributory. The policies shall also insure the indemnification obligation(s) contained in this
Agreement and any Supplement.
c. USER shall maintain worker's compensation insurance in compliance with the statutory requirements
of the state in which the Premises is located and Employer's Liability with a limit of $1,000,000 each
accident/disease/policy limit and shall provide for waiver of subrogation by the insurance company.
d. USER shall maintain Comprehensive Automobile Liability with a limit of $ 1,000,000 combined single
limit each accident, which shall include coverage for all owned, hired and non -owed vehicles.
XII. LIMITATION OF LIABILITY.
CITY shall not be liable to the USER, or any of its respective agents, representatives, employees for any
lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or
consequential damages, loss of data, or interruption or loss of use of service, even if advised of the
possibility of such damages, whether under theory of contract, tort (including negligence), strict liability
or otherwise.
XIII. ANNUAL TERMINATION.
Notwithstanding anything to the contrary contained herein, provided USER is not in default hereunder
beyond applicable notice and cure periods, USER shall have the right to terminate each Supplement upon
the annual anniversary of the Commencement Date provided that three (3) months prior notice is given
to CITY. Upon such termination, the applicable Supplement shall be of no further force or effect except
the representations, warranties and indemnities made by each Party to the other thereunder shall survive
and be enforceable after termination. Otherwise, the USER shall have no further obligations for the
payment of rent to CITY for the terminated Supplement.
XIV. INTERFERENCE.
USER agrees to install the Equipment of the type and frequency which will not cause interference which
is measurable in accordance with then existing industry standards to any equipment of CITY or to other
licensees of the Property which existed prior to the date this Agreement is executed by the Parties. In the
event any of the Equipment causes such interference, and after CITY has notified USER in writing of such
interference, USER will take all steps necessary to correct and eliminate the interference, including but
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not limited to, at CITY's option, powering down such Equipment and later powering up such Equipment
for intermittent testing.
XV. REMOVAL AT END OF TERM.
USER shall, upon expiration of the Term, or within ninety (90) days after any earlier termination of a
Supplement, remove its Equipment, conduits, fixtures and all personal property and restore the Premises
to its original condition, reasonable wear and tear excepted. CITY agrees and acknowledges that all of the
Equipment, conduits, fixtures and personal property of USER shall remain the personal property of USER
and USER shall have the right to remove the same at any time during the Term. All wireless support
structures, conduit and pole boxes are and shall remain property of CITY. If at such time for removal USER
fails to remove its equipment, USER shall pay rent at twice the then existing monthly rate or the existing
monthly pro -rata basis if based upon a longer payment term, until such time as the removal of the
Equipment, fixtures and all personal property are completed.
Contemporaneously with the delivery to CITY of this Agreement executed by USER, USER solely at its cost
and expense, will procure and deliver to CITY an irrevocable letter of credit ("Letter") in favor of CITY in
the principal amount of Five Thousand and 00/100 Dollars ($5,000.00) to secure USER'S obligation herein
to remove the Equipment. In the event USER fails to remove the Equipment and restore the Property,
reasonable wear and tear and casualty damage excepted, CITY may do so. USER shall reimburse CITY for
all costs incurred by CITY in removing the Equipment and restoring the Property. CITY may draw upon the
Letter in an amount that will reimburse CITY for its costs. Any amount remaining will be refunded to USER.
If the Letter is insufficient to cover CITY's costs USER shall promptly pay to CITY the deficiency.
XVI. NO REPRESENTATION OR WARRANTY - CONDITIONAL GRANT
CITY makes no representation or warranty regarding the condition of its title to the Property or its right
to grant to USER use or occupation thereof under this Agreement. The approval granted herein is "as is."
USER is entering into this Agreement and USER'S use of the Property is subject to USER'S own investigation
and acceptance. USER'S rights granted pursuant to this Agreement are subject and subordinate to all
limitations, restrictions, and encumbrances relating to CITY's interest in the Property that may affect or
limit CITY's right to grant those rights to USER.
XVII. ASSIGNMENT.
This Agreement and each Supplement under it may be sold, assigned or transferred by USER without any
approval or consent of CITY to the USER'S principal, affiliates, subsidiaries of its principal or to any entity
which acquires all or substantially all of USER'S assets in the market defined by the FCC in which the
Property is located by reason of a merger, acquisition or other business reorganization. As to other parties,
this Agreement and each Supplement may not be sold, assigned or transferred without written consent
of CITY, given in its sole discretion. USER shall provide written notice of all sales, assignments or transfers
within 60 days thereof. No change of stock ownership, partnership interest, or, control of USER shall
constitute an assignment hereunder. In the event of any sale, assignment or transfer, USER shall not be
relieved of any of its obligations under this Agreement or any of the Supplements whose term has not
expired or otherwise terminated at the time of such sale, assignment or transfer.
The USER may not sublet any space on a wireless support structure or allow any other party to collocate
on any wireless support structure without the express written consent of CITY.
XVIII. NOTICES.
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All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return
receipt requested or by commercial courier, provided the courier's regular business is delivery service and
provided further that it guarantees delivery to the addressee by the end of the next business day following
the courier's receipt from the sender, addressed as follows (or any other address that the Party to be
notified may have designated to the sender by like notice):
CITY:
USER:
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant
to the foregoing.
XIX. RECORDING.
CITY agrees to execute a Memorandum of each Supplement which USER may record with the appropriate
recording officer. The date set forth in the Memorandum is for recording purposes only and bears no
reference to commencement of either the Term or rent payments.
XX. DEFAULT.
In the event there is a breach by a Party with respect to any of the provisions of this Agreement or a
Supplement or its obligations thereunder, the non -breaching Party shall give the breaching Party written
notice of such breach. After receipt of such written notice, the breaching Party shall have thirty (30) days
in which to cure any breach, provided the breaching Party shall have such extended period as may be
required beyond the thirty (30) days if the breaching Party commences the cure within the thirty (30) day
period and thereafter continuously and diligently pursues the cure to completion. A Party's failure to cure
a breach within the time period set forth herein shall constitute a "Default".
XXI. REMEDIES.
In the event of a Default by either Party, without limiting the non -defaulting Party in the exercise of any
right or remedy which the non -defaulting Party may have by reason of such Default, the non -defaulting
Party may terminate this Agreement and/or the applicable Supplement and/or may pursue any remedy
now or hereafter available to the non -defaulting Party under the law of the State of Minnesota provided,
however, the USER'S sole remedy is to terminate this Agreement or any Supplement and remove the
applicable USER'S Equipment pursuant to the terms hereof. Further, upon a Default, CITY may at its option
(but without obligation to do so), perform USER'S duty or obligation on USER'S behalf, including but not
limited to the obtaining of reasonably required insurance policies. The costs and expenses of any such
performance by CITY shall be due and payable by USER upon invoice therefor.
XXII. ENVIRONMENTAL.
Upon Request of CITY, USER must obtain at USER'S cost a radio frequency interference study
carried out by an independent professional radio frequency engineer ("RF Engineer") showing
that USER'S use will not interfere with any existing, licensed communications facilities, or CITY's
licensed and unlicensed communications facilities. The RF Engineer shall provide said evaluation
to CITY and USER no later than thirty (30) days after frequencies are provided by CITY. USER shall
not transmit or receive radio waves at the Property until such evaluation has been satisfactorily
completed.
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USER shall hire an RF Engineer to conduct a radiation survey of the Property following USER'S
initial RF transmissions on the Premises. USER shall be responsible for all costs of such survey.
USER shall provide a copy of the survey to CITY upon its completion.
C. USER shall implement all measures at the transmission site required by FCC regulations, including
but not limited to posting signs and markings. CITY shall cooperate with any permit USER to
implement all reasonable measures in order for USER to fulfill its FCC obligations. CITY agrees that
in the event any future party causes the entire site to exceed FCC Radio Frequency radiation limits,
as measured on the Premises, CITY shall hold such future party liable for all such later -arising non-
compliance.
XXIII. CASUALTY.
In the event of damage by fire or other casualty to the wireless support structure or Premises that cannot
reasonably be expected to be repaired within forty-five (45) days following same or which CITY elects not
to repair, or if the wireless support structure or Property is damaged by fire or other casualty so that such
damage may reasonably be expected to disrupt USER'S operations at the Premises for more than forty-
five (45) days, then USER may, at any time following such fire or other casualty, provided CITY has not
completed the restoration required to permit USER to resume its operation at the Premises, terminate
the Supplement upon fifteen (15) days prior written notice to CITY. Any such notice of termination shall
cause the Supplement to expire with the same force and effect as though the date set forth in such notice
were the date originally set as the expiration date of the Supplement. The Base Rent shall abate during
the period of repair following such fire or other casualty in proportion to the degree to which USER'S use
of the Premises is impaired.
XXIV. APPLICABLE LAWS.
USER shall, at USER'S sole cost and expense, comply with (a) all Laws to the extent that they relate to
USER'S use of the Premises; (b) all building codes requiring modifications to the Premises due to the
improvements being made by USER in the Premises; and (c) all Permits. It shall be CITY's obligation to
comply with all Laws relating to the Premises in general.
XXV. MISCELLANEOUS.
This Agreement and the Supplements that may be executed from time to time hereunder contain all
agreements, promises and understandings between the CITY and the USER regarding this transaction, and
no oral agreement, promises or understandings shall be binding upon either the CITY or the USER in any
dispute, controversy or proceeding. This Agreement may not be amended or varied except in a writing
signed by all Parties. This Agreement shall extend to and bind the heirs, personal representatives,
successors and assigns hereto. The failure of either party to insist upon strict performance of any of the
terms or conditions of this Agreement or to exercise any of its rights hereunder shall not waive such rights
and such party shall have the right to enforce such rights at any time. The performance of this Agreement
via each Supplement shall be governed interpreted, construed and regulated by the laws of the state in
which the Premises is located without reference to its choice of law rules. The recitals set forth above in
this Agreement are hereby incorporated in this Agreement as though they were set forth in the body
hereof
XXVI. CONDEMNATION.
If the whole or any part of the Property shall be taken by any public authority under the power of eminent
domain, or is sold to any entity having the power of eminent domain under threat of condemnation, then
the term of this Agreement or the applicable Supplements shall cease as of the date of the granting of the
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petition or the date of taking or closing whichever is applicable. All rentals and costs paid to said
termination date shall be retained by CITY, but any obligation to pay future rentals and costs shall cease.
Any award, compensation, or damages, shall be paid to and be the sole property of CITY, but nothing
herein shall preclude USER from claiming against the condemning authority with respect to moving
expenses and loss of personal property, and receiving an award therefor.
XXVII. DATA PRACTICES.
This Agreement and the Supplements are subject to the Minnesota Government Data Practice Act,
Minnesota Statutes Chapter 13 (Data Practices Act). All government data, as defined in the Data Practices
Act Section 13.02, Subd 7, which is created, collected, received, stored, used, maintained, or disseminated
by USER in performing any of the functions of the CITY during performance of this Agreement or a
Supplement is subject to the requirements of the Data Practice Act and USER shall comply with those
requirements as if it were a government entity.
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EXHIBIT "A"
SUPPLEMENT TO STANDARD SMALL WIRELESS FACILITY COLLOCATION AGREEMENT
1. This Supplement to Standard Small Wireless Facility Collocation Agreement ("the Supplement")
is made this day of 2017 between the City of Plymouth, Minnesota, with its principal
offices located at 3400 Plymouth Boulevard, Plymouth MN ("CITY"), and with its
principal place of business located at
("USER")
2. Standard Small Wireless Facility Collocation Agreement. This Supplement is a Supplement as
referenced in that certain Standard Small Wireless Facility Collocation Agreement between CITY and USER,
dated the _ day of 2017, (the "Agreement"). The CITY and USER agree that all of the
terms and conditions of the Agreement are incorporated herein by reference and made a part hereof
without the necessity of repeating or attaching the Agreement and are in full force and effect except as
they may be modified by this Supplement. In the event of a conflict, contradiction, modification, or
inconsistency between any term of the Agreement and this Supplement, the terms of this Supplement
shall govern. Capitalized terms used in this Supplement shall have the same meaning described for them
in the Agreement unless otherwise indicated herein.
3. Premises. The Property owned by CITY is located at
, Plymouth, Minnesota 55447; the Premises approved by the CITY for USER'S use
hereunder is described on Exhibit "I" attached hereto and made a part hereof.
4. Term. The Commencement Date and the Term of this Supplement shall be as set forth in the
Agreement.
5. Consideration. Annual Base Rent for this Supplement shall be One Hundred Seventy -Five and
No/100 Dollars ($175.00) and shall be payable as set forth in the Agreement. [Insert one of the following:
"USER shall furnish and install an electrical meter for the measurement of electric power used by USER'S
installation. Or, if an electric meter is not installed: "USER shall pay a monthly fee of Seventy -Three and
No/100 Dollars ($73.00) per radio node less than or equal to 100 max watts." Or "USER shall pay a monthly
fee of One Hundred Eight -Two and No/100 Dollars ($182.00) per node over 100 max watts."]
6. Site Specific Terms. (Include any site-specific terms)
Any Replacement Wireless Support Structure or New Wireless Support Structure shall be installed by USER
pursuant to the Plans at the location shown on Exhibit "1" attached hereto. USER shall at USER'S sole cost
and expense, remove, dispose and/or discard any wireless support structure that USER removed and
installed a replacement wireless support structure in place thereof.
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals
the day and year first above written.
CITY:
194421vl
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City of Plymouth, Minnesota
By: [EXHIBIT ONLY - NOT FOR EXECUTION
Title: Mayor
Date:
AND
By: [EXHIBIT ONLY - NOT FOR EXECUTION
Title: City Manager
Date:
USER:
By: [EXHIBIT ONLY - NOT FOR EXECUTIONI
Name:
Date:
194421v1
Title:
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Page 31
EXHIBIT "I"
Premises (Include Map, Wireless Support Structure Diagram, Site Plan and Table Listing All Wireless
Support Structure Locations)
194421v1
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FXNIRIT "Pt"
SMALL WIRELESS FACILITY COLLOCATION AGREMENT
SUPPLEMENT APPLICATION FOR CITY REVIEW
UNDER AGREEMENT BETWEEN CITY AND
DATED THE DAY OF , 2017 ("AGREEMENT")
1. Attach one (1) set of detailed construction plans and specifications ("Plans") and one (1)
completed engineering grade plan sheets for each site ("Grade Plans") signed by a Minnesota
Licensed Engineer and one electronic copy of each.
2. Attach the application fee of $0.00; checks payable to the City.
3. Attach copy of permission from a wireless support structure owner if any wireless support
structure is owned by an agency or party other than the City.
4. If Plans and Grading Plans are approved by City, one (1) set of each with City comments will be
returned (emailed) to the Applicant.
5. Submit a check in the amount of $0.00, to be held in escrow by the City, to be used by the City
to pay all Administrative Fees incurred by the City under the terms of the Agreement, the
balance, if any, to be returned upon construction completion and delivery of completed as-
builts in AutoCAD format to the City.
The following items must be checked and on file prior to Application being considered complete
for review.
❑ Collocation Agreement (if applicable) ❑ Performance Bond
Applicants Name: Phone Number: Fax
Number:
Email Address:
Company Name:
Number:
Billing Address:
Company Job/ID Number:
LOCATION:
DESCRIPTION OF WORK:
STRUCTURAL REPORT:
CONSTRUCTION SCHEDULE: Start Date
Schedule:
Completion Date:
194421v1
Phone Number:
City:
Fax
State: Zip:
Number of Construction Days During
17
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By signing this application, I (the applicant/company) hereby acknowledge that 1 must adhere to all
provisions of the City Code Section 800 and any other applicable ordinances. The applicant shall also
comply with the regulations of all other governmental agencies for the protection of the public.
APPLICANT'S SIGNATURE:
DATE:
For Office Use:
Plan Meeting Date:
Number:
Application Received:
194421v1
Agenda Item Number:
Decision Deadline:
Approved Plan
Date Stamp:
IN
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