ITEM 4.4TPC
The Planning Company
MEMORANDUM
TO:
FROM:
DATE:
RE:
TPC FILE:
BACKGROUND
3601 Thurston Avenue
Anoka, MN 55303
763.231.5840
TPC@PlanningCo.com
Otsego Planning Commission
D. Daniel Licht, AICP
20 March 2019
Otsego — City Code; Small Cell Wireless
101.01
ITEM 4.4
In 2017, the State of Minnesota adopted amendments to Statutes 237.162 and 237.163
allowing for private service providers to install small cell wireless facilities and wireless support
structures within public rights-of-way. The Federal Communications Commission approved a
Declaratory Ruling in 2018 further addressing regulation of small cell wireless facilities. The
Statute provides guidelines and limitations on a city's ability to regulate the placement and
installation of such facilities through a permitting process.
The City has adopted Title 8, Chapter 6 of the City Code to manage public rights-of-way owned
by the City. Amendment of the City Code is necessary to establish appropriate regulations for
small wireless facilities and support structures in advance of a request to locate within City
right-of-way.
The City also regulates personal wireless communication facilities within Chapter 34 of the
Zoning Ordinance for installation on private properties. The Federal rules and State Statute also
address the City's regulation of small cell wireless from a zoning perspective. A public hearing
has been noticed for the Planning Commission meeting on 1 April 2019 to consider
amendments to the Zoning Ordinance addressing small cell wireless facilities.
Exhibits:
Small cell wireless facilities examples
Draft ordinance
■ Location on City structure agreement template
ANALYSIS
Key elements of the Federal rules and State Statute regulating small cell wireless facilities and
support structures within public rights-of-way include:
■ Cities cannot discriminate among service providers.
■ Cities cannot regulate small cell wireless facilities in a manner that prohibits or has the
effect of prohibiting personal wireless services.
■ Cities must establish a permitting process for small cell wireless providers to locate
within public rights-of-way. Applications for multiple small cell wireless facilities
locations may be submitted in a batch of up to 15 locations within a two-mile radius.
■ The City must approve or deny an application for a small cell wireless location within the
right-of-way within 90 days of a complete application being received. The City must
allow for collocation of other small cell wireless facilities on existing wireless support
structures for other providers subject to an expedited 60 day review process if located
within the public right-of-way.
■ The City may charge the service provider to occupy the right-of-way up to $150 per
location plus an additional $25 per location for maintenance, and service fees for
electricity.
■ The City may limit the height of the wireless support structure to 50 feet, if not mounted
on an existing utility pole, which can only extend 10 feet above the height of the existing
structure.
■ Small cell wireless facilities not located within a public right-of-way must be allowed as a
permitted use, except within residential districts where the City may require a
conditional use permit.
■ The City may require an agreement separate from small cell wireless permit for
installation of facilities or equipment on City -owned structures. The basic form of such
an agreement needs to be provided for at the time the small cell wireless ordinances are
adopted so that the service providers have an understanding of the terms.
City staff has drafted amendments to Title 8, Section 6 of the City Code to implement
regulations applicable to small cell wireless facilities and equipment within public rights-of-way
that complies with the above requirements. The Public Works Subcommittee reviewed the
proposed ordinance amendments at their meeting on 20 March 2019 and recommends
approval.
2
The Federal Rules and State Statue also address zoning standards that the City may impose on
small cell wireless facilities located outside of the public right-of-way on private properties. The
performance standards allowed under the rules mirror the City's ability to regulate small cell
wireless facilities within the public right-of-way. The administrative processing of small cell
wireless applications under zoning are different, however. The City is required to allow small
cell wireless facilities as a permitted use within business, industrial, and institutional districts.
Any review of such facilities is limited to administrative procedures to confirm compliance with
established performance standards and or building codes. The City may require a conditional
use permit for installation of small cell wireless facilities within residential districts. The intent
of the conditional use permit process would be to require Planning Commission review and City
Council approval of any location within residential districts with conditions as necessary to
address compatibility or aesthetic concerns and require further justification of a demonstrated
need for the location of the small wireless facility.
RECOMMENDATION
City staff recommends approval of the proposed ordinance regulating small cell wireless
facilities as presented.
POSSIBLE ACTIONS
1. Motion to recommend approval of an ordinance amending the City Code to regulate
small cell wireless facilities, as presented.
2. Motion to table.
C. Adam Flaherty, City Administrator/Finance Director
Tami Loff, City Clerk
Andy MacArthur, City Attorney
Ron Wagner, City Engineer
3
What Are Small Cell Deployments?
Small cell deployments are complementary to towers, adding much needed coverage and
capacity to urban and residential areas, venues, and anywhere large crowds gather
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Small Cell Antenna and
Equipment
ORDINANCE NO.: 2019 -XX
CITY OF OTSEGO
COUNTY OF WRIGHT, MINNESOTA
AN ORDINANCE AMENDING THE CITY CODE REGARDING SMALL CELL WIRELESS
FACILITIES AND EQUIPMENT.
THE CITY COUNCIL OF THE CITY OF OTSEGO DOES HEREBY ORDAIN:
Section 1. Section 3-1-2.1 of the City Code (Fee Schedule – Engineering; ROW
Permit) is hereby amendment to add the following provisions:
ROW permit [Title 8, chapter 6
– Excavation fee $200.00 + cost
incurred
Obstruction fee $2.50/linear foot
Small wireless facility F
IF—F— Management fee F— 200. 00
I Annual lease fee for use of City -F 150.00
structure
F—F Annual collocation maintenance fee 25.00
F—F Electrical service fee Cost incurred.
Section 2. Title 8, Chapter 6 of the City Code (public rights-of-way management) is
hereby amended to include the following provisions with subsequent sections renumbered
accordingly:
8-6-2: ELECTION TO MANAGE PUBLIC RIGHTS-OF-WAY: Pursuant to the authorit
ranted to the city under state and federal statutory, administrative and common law. the city
hereby_ elects pursuant to Minnesota statutes 237.163 subdivision 2(b), to manage rights of way
within its jurisdiction. All right of way users, including the city, are subject to the provisions in this
chapter. The city is exempt from the obligation of paving for permits or other fees imposed by this
chapter. This chapter shall be interpreted consistently with the 1997 session laws. chapter 123
and 2017 session laws. chapter 94, substantially codified in Minnesota statutes sections _237.16
237.162, 237.163, 237.79. 237.81 and 238.086 (the "act") Minnesota statutes chapter 216D and
other laws governing applicable rights of the city and users of the right of way. This chapter shall
also be interpreted consistent with Minnesota rules 7819.0050 7819.9950 and Minnesota rules
chapter 7560 where possible. To the extent any provisions of this chapter cannot be interpreted
consistently with Minnesota rules, that interpretation most consistent with the act and other
applicable statutory and case law is intended.
Section 3. Section 8-6-3 of the City Code (Public Rights -of -Way Management -
Definitions) is hereby amended to revise the following definitions:
MANAGEMENT COSTS: The actual costs incurred by the city for managing its public rights-of-
way, including, but not limited to, costs associated with registering applicants; issuing, processing
and verifying right of way or small wireless facility permit applications; inspecting job sites and
restoration projects; maintaining, supporting, protecting, or moving user facilities during right of
way work; determining the adequacy of right-of-way restoration; restoring work inadequately
performed, including turf, sidewalks, trails and pavement, after providing notice and the
opportunity to correct the work; revoking right of way or small wireless facility permits; and creating
and updating mapping systems. Management costs do not include payment by a
telecommunications right of way user for the use of the right of way,—; unreasonable fees of a
third -party contractor used by the city as part of managing public right-of-way, including but not
limited to any third -party contractor fee tied to or based upon customer counts, access lines_
revenue generated by the telecommunications right of way user, or revenue generated for the
citvor the fees and cost of litigation relating to the interpretation of Minnesota session laws 2017.
chapter 94,_Minnesota session laws 1997, chapter 123; Minnesota statutes section 237.162 or
237.163 or any ordinance enacted under those sections, or the city fees and costs related to
appeals taken pursuant to section 8-6-22 of this chapter,
RIGHT-OF-WAY PERMIT: Eit"eF theexcavationpermit or the obstruction permit, or both,
depending on the context, or a small wireless facility permit, required by this chapter.
TELECOMMUNICATION RIGHT OF WAY USER: A person owning or controlling a facility in the
right of way, or seeking to own or control the same, which is used or is intended to be used for
providing wireless service, or transporting telecommunication or other video, voice or data
information. For purposes of this chapter, a cable communication system defined and regulated
under Minnesota statutes chapter 238, and telecommunications activities related to providing
natural gas or electric energy services, whetheF provided by a public utility as defined in Minnesota
statutes section 2166.02, a municipality, a municipal gas or power agency organized under
Minnesota statutes chapters 453 and 453A, or a cooperative electric association organized under
Minnesota statutes chapter 308A, are not telecommunications right of way users for purposes of
this chapter, except to the extent these entities are offering wireless services.
Section 4. Section 8-6-3 of the City Code (Public Rights -of -Way Management -
Definitions) is hereby amended to add the following definitions:
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.
MICRO WIRELESS FACILITY: A small wireless facility that is no larder than 24 inches Iona. 15
2
inches wide. and 12 inches hiah. and whose exterior antenna. if anv. is no lonaer than 11 inches
PUBLIC RIGHT OF WAY OR RIGHT OF WAY: The surface, airspace above the surface and the
area below the surface of any public street. highway, lane, path, alley, sidewalktrail, avenue.
boulevard, drive. court, concourse, bridge, tunnel, park, parkway, skyway, waterway. dock,
bulkhead, wharf, pier, easement or similar property or waters within the city owned by or under
control of the city, or dedicated or otherwise conveyed to the city for general public use. including.
but not limited to, any riparian right, which, consistent with the purposes for which it was created.
obtained or dedicated, may be used for the purpose of installing_, operating and maintaining utility
service facilities. No reference herein to a "public right of way" or "right of way" shall be deemed
to be a representation or guarantee by the city that its interest or other right to control or use such
property is sufficient to permit its use for the purpose of installing, operating and maintaining utility
service facilities.
PUBLIC RIGHT-OF-WAY USER:
A. A telecommunications right-of-way user as defined by Minnesota statutes section
237.162, subdivision 4; or
B. A person or entity owning or controlling a facility in the right-of-way that is used or intended
to be used for providing utility service. and who has a right under law, franchiseor
ordinance to use the right-of-way.
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 (6) 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 (6) cubic feet: and lii) 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
connection of power and other services, and any equipment concealed from public view within or
behind an existing structure or concealment, is inaggregate no more than twenty eight (28) cubic
feet in volume: or (2) a micro wireless facility.
SMALL WIRELESS FACILITY PERMIT: The permit issued by the city authorizing the permittee
to collocate a small wireless facility or install and maintain a wireless support structure.
SMALL WIRELESS FACILITY PERMIT FEE: Money_ paid to the city_ by the permittee to cover the
costs as provided in section 8-6-7 of this chapter.
UTILITY POLE: A pole that is used in whole or in part to facilitate telecommunications or electric
service.
WIRELESS FACILITY: Equipment at a fixed location that enables the provision of wireless
services between user equipment and a wireless service network. including: (1) equipment
associated with wireless service: (2) a radio transceiver, antenna, coaxial or fiber-optic cable.
regular and backup power supplies, and comparable equipment, regardless of technological
configuration: and (3) a small wireless facility. Wireless facility does not include: (1) wireless
support structures. (2) wireline backhaul facilities. or (3) coaxial or fiber-optic cables between
utility poles or wireless support structures, or that are not otherwise immediately adjacent to or
directly associated with a specific antenna.
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).
WIRELESS SUPPORT STRUCTURE: A new or existing structure in a public right of wav
designed to support or capable of supporting small wireless facilities. as reasonably determined
by the city.
WIRELINE BACKHAUL FACILITY: A facility used to transport communications data by wire from
a wireless facility to a communications network.
Section 5. Section 8-6-3 of the City Code (Public Rights -of -Way Management -
Definitions) is hereby amended to repeal the following definitions:
Section 6. Section 8-6-5.A of the City Code (Public Rights -of -Way Management —
Registration Requirements) is hereby amended to read as follows:
A. Registration Required:
Each person who occupies, uses, or seeks to occupy or use, the right-of-way for
purposes of placing, maintaining or repairing any equipment or facilities or small
wireless facilities or wireless support structures in the right-of-way, including
persons with installation and maintenance responsibilities by lease, sublease or
assignment, must register with the Director. Registration will consist of providing
application information and paying a registration fee.
2. No person may construct, install, repair, remove, relocate, collocate. or perform
any other work on, or use any facilities or any part thereof in any right-of-way
without first being registered with the Director.
4
Section 7. Section 8-6-7.A of the City Code (Public Rights -of -Way Management — Permit
Requirements) is hereby amended to read as follows:
A. Permits Required: Except as otherwise provided in this Code, no person may east ar
avate-mav excavate, place a utility service, install or place facilities, or obstruct any
right-of-way without first having obtained the appropriate right-of-way permit from the
Director to do so.
Excavation Permit: An excavation permit is required by a registrant to excavate
that part of the right-of-way described in such permit and to hinder free and open
passage over the specified portion of the right-of-way by placing facilities described
therein, to the extent and for the duration specified therein.
2. Obstruction Permit: An obstruction permit is required by a registrant to hinder free
and open passage over the specified portion of right-of-way by placing equipment
described therein on the right-of-way, to the extent and for the duration specified
therein. An obstruction permit is not required if a person already possesses a valid
excavation permit for the same project.
3. Small Wireless Facility Permit: A small wireless facility permit is required_ by a
registrant to erect or install a wireless support structure. to collocate a small
wireless facility, or to otherwise install a small wireless facility in the specified
portion of the right of way, to the extent specified therein. provided that such permit
shall remain in effect for the length of time the facility is in use, unless lawfully
revoked.
Section 8. Section 8-6-7 of the City Code (Public Rights -of -Way Management — Permit
Requirements) is hereby amended to add the following provisions with subsequent sections
renumbered accordingly:
C. Small Wireless Facility Permit Applications:
1. Deadline for Action: The City shall approve or denv a small wireless facilitv permit
application within ninety (90) days after receiving a complete application. The small
wireless facility permit, and any associated encroachment or building permit shall
be deemed approved if the city fails to approve or deny the application within the
review periods established in this section.
2. Consolidated Applications:
a. An applicant may file a consolidated small wireless facility permit
application addressing the proposed collocation of up to fifteen (15) small
wireless facilitiesor a greater number if agreed by the city, provided that
all small wireless facilities in an application:
1) are located within a two (2) mile radius:
2) consist of substantially similar equipment: and
(3) are to be placed on similar types of wireless support structures.
b. In rendering a decision on a consolidated permit application, the city may
approve some small wireless facilities and deny others, but may not use
denial of one or more permits as a basis to deny all small wireless facilities
in the application.
3. Tolling of Deadline for Action: The ninety (90) day deadline for action may be tolled
if
a. The city receives applications within a sinale seven-dav period from one or
more applicants seeking approval of permits for more than thirty (30) small
wireless facilities. In such case, the city may extend the ninety (90) dav
deadline for all such applications by an additional 30 days by informing the
affected applicants in writing of such extension.
b. The applicant fails to submit all required documents or information and the
city provides written notice of incompleteness to the applicant within thirty
(30) business days of receipt of the application, clearly and specifically
delineating all missing documents or information. Information delineated in
the notice is limited to documents or information publicly required as of the
date of application and reasonably related to the city's determination
whether the proposed equipment falls within the definition of a small
wireless facility and whether the proposed deployment satisfies all health.
safety. and welfare regulations applicable to the small wireless facility
permit request. Upon applicant's submittal of additional information in
response to a notice of incompleteness, the city has ten (10) days to notify
the applicant in writing of any information requested in the initial notice of
incompleteness that is still missing. Second or subsequent notices of
incompleteness may not specify documents or information that were
delineated in the original notice of incompleteness. Requests for
information not requested in the initial notice of incompleteness do not toll
the ninety (90) day deadline for action.
C. The city and applicant may agree in writing to toll the review period.
Section 9. Section 8-6-7.D of the City Code (Public Rights -of -Way Management —
Issuance of Permit; Conditions is hereby amended to read as follows:
Issuance Of Permit; Conditions:
1. If the applicant has satisfied the requirements of this chapter, the Director shall
issue a permit.
2. The Director may impose reasonable conditions upon the issuance of the permit
and the performance of the applicant thereunder to protect the health, safety, and
welfare or when necessary to protect the right-of-way and its current and future
use.
a. Installation, placement, location and relocation of facilities shall comply with
all federal, state and local laws.
b. Installation of all underground utilities shall be in accordance with the
underground utilities regulations set forth in this section an_d all other
applicable federal, state and local laws.
C. Precautions shall be taken as are necessary to avoid creating unsafe or
unsanitary conditions.
d. Project operations and work shall be conducted in a manner so as to
ensure the least obstruction to and interference with present and continued
use of the right-of-way.
e Precautions shall be taken to assure the safety of the general public
employees, invitees and those who require access to abutting property
including appropriate signage.
f. The permittee shall notify abutting property owners with a forty eight (48)
hour written notice prior to commencement of any permitted project.
a. The permittee involved in underground projects shall register with Gopher
State One Call and comply with the requirements thereof.
h. The permittee shall comply with the "Minnesota Manual On _Uniform Traffic
Control Devices" (MMUTCD) at all times during anyproject work and shall
protect and identify excavations and work operations with barricade flaps
in the daylight hours and by warning lights at dusk and night.
i. The permittee shall comply with all conditions of the permit.
j. When any trail, sidewalk or driveway has been cut, city approved signage
must be kept in place and maintained until restoration is complete.
k. The permittee shall provide proper trench protection as required -by -OSHA
o prevent any cave in: injury to property or persons: or enlargement of the
excavation.
I. Excavations, trenches and jacking pits off the roadway surface area or
adjacent to the roadway or curbing shall be sheathed and braced. When
unattended, all excavations, trenches and jacking pits shall be secured and
protected to prevent surface drainage and access by unauthorized
persons.
M. The permittee shall protect the root growth of trees and shrubbery located
within the right of way and adjacent thereto.
n. The permittee shall coordinate project work and installation of facilities in
collocations involving other right of way users.
o. The permittee shall maintain access to all properties and cross streets
during project work, including emergency vehicle access.
P. The permittee shall physically locate property lines abutting the project
work. The permittee shall replace, with the services of a Minnesota licensed
surveyor, any property corners or monuments disturbed as a result of the
rp oiect.
g. The permittee shall complete restoration of the right of way in conformance
with this section.
r. No permittee, or any agent, subcontractor or employee thereof, shall use
lugs (steel tracks) on any roadway surfaces.
S. The permittee shall remove daily, or as required by the city, all dirt or debris
from sidewalks, trails, public and private roadway surfaces and curbs and
utters during project work.
t. The permittee shall obtain all other necessary permits, licenses and
approvals, pay all required fees therefor and comply with all requirements
of local, state and federal laws.
U. The permittee shall not do any work outside the project area as specified
in the permit.
V. The permittee shall conduct a public informational meeting__ for all major
projects as deemed necessary by the city.
W. In new subdivisions in which public utilities have been constructed. permit
applications will not be accepted for review prior to construction plan
completion by the subdivider's engineer and the mapping requirements
specified in section 8-6-14 of this chapter have been satisfied. Construction
plans shall be submitted to the small utility companies by the subdivider.
X. Trenchless excavation/directional boring is prohibited more than forty eight
inches (48") below grade unless the city engineer finds as built record
drawings indicate that there are no existing utilities in the vicinity that could
be impacted.
3. Small Wireless Facility Conditions:
a. In addition to section 8-6-7.D.2 of this section, the erection or installation of
a wireless support structure, the collocation of a small wireless facility, or
other installation of a small wireless facility in the right of way, shall be
subject to the following conditions:
1) A small wireless facility shall only be collocated on the particular
wireless support structure, under those attachment specifications_
and at the height indicated in the applicable permit application.
(2) No new wireless support structure installed within the right of way
shall exceed fifty (50) feet above ground level in height without the
city's written authorization, provided that the city may impose a
lower height limit in the applicable permit to protect the public
health, safety and welfare or to protect the right of way and its
current use, and further provided that a wireless support structure
that replaces an existing wireless support structure in the public
right of way that is greater than fifty (50) feet above ground level in
height may be placed at the height of the existing wireless support
structure, subject to such conditions or requirements as may_ be
imposed in the applicable permit.
3) No wireless facility constructed in the right of way after EFFECTIVE
DATE may extend more than ten (10) feet above a wireless support
structure existing on EFFECTIVE DATE.
4) Where an applicant proposes to install a new wireless support
structure in the right-of-way, the new wireless support structure
shall not be located within (600) feet of any existing wireless support
structure in and around the riaht-of-way.
5 Wireless support structures:
a) All new wireless support structures shall be of a monopole
design not exceeding eighteen (18) inches in diameter.
b) All replacement wireless support structure and equipment
shall match the surrounding poles in structure design.
materials, and color.
(6) All of a small wireless facility that is affixed to a wireless support
structure shall be the same or similar color of the wireless support
structure as practical.
6) All electric, telephone, cable, fiber, or other utility lines necessary to
operate a small wireless facility shall be installed within the
applicable wireless support structure where practical and shall not
be coiled or rolled up and externally attached to the wireless support
structure or equipment boxes.
7) Where an applicant Droposes collocation on a decorative wireless
support structure, sign, or other structure not intended to support
small wireless facilities, the city may impose reasonable
requirements to accommodate the particular design, appearance,
or intended purpose of such structure.
8) Where an applicant proposes to replace a wireless support
structure the city may impose reasonable restocking, replacement_
or relocation requirements on the replacement of such structure.
b. Small Wireless Facility Agreement:
1) A small wireless facilitv shall onlv be collocated on a small wireless
support structure owned or controlled by the city, or any other city
asset in the right-of-way, after applicant has executed a standard
small wireless facility_ collocation agreement with the city. The
standard collocation agreement may require payment of the
following set forth in section 3-2-1 of this title:
a Management costs:
b Annual rent on the city structure:
c) An annual fee for maintenance associated with the
collocation:
d) Costs incurred for electrical service.
2) The standard collocation aareement shall be in addition to. and not
in lieu of, the required small wireless facility permit provided,
however, that the applicant shall not be additionally required to
obtain a license or franchise in order to collocate. Issuance of a
small wireless facility permit does not supersede, alter or affect any
then -existing agreement between the city and applicant.
Section 10. Section 8-6-7.D of the City Code (Public Rights -of -Way Management —
Denial of Permit) is hereby amended to read as follows:
Denial Of Permit:
1. The Director may deny a permit for failure to meet the requirements and conditions
10
of this chapter or if the Director determines that the denial is necessary to protect
the health, safety, and welfare or when necessary to protect the right-of-way and
its current and future -use _ and:
a. The city may deny a permit if the utility_ has failed to comply_ with previous
permit conditions.
b. The city may withhold issuance of a permit until conditions of previous
permits are complied with.
2. The denial of a permit must be made in writing and must document the basis for
the denial. The city must notify the applicant in writing_ within three (31 business
days of the decision to deny a permit.
3. If an application is denied. the applicant may address the reasons for denial
identified by the city and resubmit its application. If the application is resubmitted
within thirty (30) days of receipt of the notice of denial, no additional application
fee shall be imposed. The city must approve or deny the resubmitted application
within thirty (30) days after submission
Section 11. Section 8-6-7.E.1 of the City Code (Public Rights -of -Way Management —
Permit Fees is hereby amended to add the following provisions:
C. Small Wireless Facility Permit Fee: The city shall impose a small wireless facility
permit fee for the placement of small wireless facilities and wireless support
structures in the public right of way in an amount sufficient to recover:
(1) Management costs; and,
(2) City engineering, make-ready, and construction costs associated with
collocation of small wireless facilities.
d. Cost of Initial Enaineerina Survev and Preparatory Construction Work Associated
with Collocation: Any initial engineering survey and preparatory construction work
associated with collocation must bepaid 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.
Section 12. Section 8-6-7.E.2 of the City Code (Public Rights -of -Way Management —
Permit Fees is hereby amended to read as follows:
2. Payment Of Fees: Payment Of Permit Fees: No excavation permit, -GF obstruction
permit or small wireless facility permit shall be issued without payment of the
respective excavation, er obstruction or small wireless facility permit fees. The city
may allow the applicant to pay such fees within thirty (30) days of billing.
11
Section 13. Section 11-2-2 of the City Code (Zoning Ordinance - Definitions) is hereby
amended to add the following definitions:
SMALL WIRELESS FACILITY:
A. A wireless facility that meets both of the following qualifications: (i) each antenna is located
inside an enclosure of no more than six (6) 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 (6) cubic feet: and (ii) all other wireless equipment
associated with the small wireless facility, excluding electric meters, concealment
elements, telecommunications demarcation boxes, battery backup power systems.
rounding equipment, power transfer switches, cutoff switches, cable conduit, vertical
cable runs for 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 twenty eight (28) cubic feet in volume: or.
B. A micro wireless -fa cility.
WIRELESS FACILITY: Equipment at a fixed location that enables the provision of wireless
services between user equipment and a wireless service network, including:
A. Equipment associated with wireless service:
B. A radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup power
supplies, and comparable equipment, regardless of technological configuration: and
C. A small wireless facility does not include:
1. Wireless support structures.
2. Wireline backhaul facilities.
3. Coaxial or fiber-optic cables between utility poles or wireless support structures, or
that are not otherwise immediately_ adjacent to or directly_ associated with a specific
antenna.
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).
WIRELESS SUPPORT STRUCTURE: A new or existing structure designed to support or capable
of supporting small wireless facilities.
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WIRELINE BACKHAUL FACILITY: A facility used to transport communications data by wire from
a wireless facility to a communications network.
Section 14. Section 11-34-4.B of the City Code (Zoning Ordinance - Antennas is hereby
amended to read as follows:
B. Business And Institutional District Standards:
Antennas, Other Than Small Wireless. Located Upon A Public Structure: Personal
wireless service antennas located upon a public structure shall comply with the
following standards:
a. Transmitting, receiving and switching equipment shall be housed within an
existing structure whenever possible. If a new equipment building is
necessary for transmitting, receiving and switching equipment, it shall be
situated in the rear yard of the principal use and shall be screened from
view by landscaping where appropriate.
b. An administrative permit is issued in compliance with the provisions
of chapter 8 of this title.
2. Antennas, Other Than Small Wireless. Not Located Upon A Public Structure:
Personal wireless service antennas not located upon a public structure shall
require the processing of a conditional use permit and shall comply with the
following standards:
a. The applicant shall demonstrate by providing a coverage/interference
analysis and capacity analysis prepared by a registered professional
engineer that location of the antennas as proposed is necessary to meet
the frequency reuse and spacing needs of the personal wireless service
system and to provide adequate portable personal wireless service
coverage and capacity to areas which cannot be adequately served by
locating the antennas in a less restrictive district.
b. The antennas shall be located on an existing structure, if possible, and shall
not extend more than fifteen feet (15') above the structural height of the
structure to which they are attached.
C. If no existing structure which meets the height requirements for the
antennas is available for mounting purposes, the antennas may be
mounted on a single ground mounted pole; provided, that:
(1) The pole not exceed seventy five feet (75') in height.
(2) The setback of the pole from the nearest residential structure is not
less than the height of the antenna. Exceptions to such setback may
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be granted if a qualified structural engineer specifies in writing that
any collapse of the pole will occur within a lesser distance under all
foreseeable circumstances.
d. Transmitting, receiving and switching equipment shall be housed within an
existing structure whenever possible. If a new equipment building is
necessary for transmitting, receiving and switching equipment, it shall be
situated in the rear yard of the principal use and shall be screened from
view by landscaping where appropriate.
e. Unless the antenna is mounted on an existing structure, a security fence
not greater than eight feet (8') in height with a maximum opacity of fifty
percent (50%) shall be provided around the support structure.
The conditional use permit provisions of chapter 4 of this title are
considered and determined to be satisfied.
3. Small wireless facilities and equipment as a permitted use, subject to the following
standards:
a. A small wireless facilitv shall onlv be collocated on the particular wireless
support structure, under those attachment specifications, and at the height
indicated in the applicable permit application.
b. No new wireless support structure shall exceed fifty (50) feet above ground
level in height.
C. No wireless facility shall extend more than ten (10) feet above a wireless
support structure.
d. Where an applicant proposes to install a new wireless support structure,
the new wireless support structure shall not be located within (600) feet of
any existing wireless support structure.
e. Wireless support structures:
(1) All new wireless support structures shall be of a monopole design
not exceeding eighteen (18) inches in diameter.
(2) All replacement wireless support structure and equipment shall
match the surrounding poles in structure design, materials, and
color.
3) All of a small wireless facility that is affixed to a wireless support
structure shall be the same or similar color of the wireless support
structure as practical.
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4) All electric, telephone, cable, fiber, or other utility lines necessary to
operate a small wireless facility shall be installed within the
applicable wireless support structure wherepractical and shall not
be coiled or rolled up and externally attached to the wireless support
structure or equipment boxes.
Section 15. Section 11-34-4.0 of the City Code (Zoning Ordinance - Antennas is hereby
amended read as follows:
C. Industrial District Standards:
Antennas, Other Than Small Wireless Facilities, Located Upon A Public Structure:
Personal wireless service antennas located upon a public structure shall require
the processing of an administrative permit and shall comply with the following
standards: An administrative permit is issued in compliance with the provisions
of chapter 8 of this title.
2. Antennas, Other Than Small Wireless Facilities Not Located Upon A Public
Structure: Personal wireless service antennas not located upon a public structure
shall require the processing of an administrative permit and shall comply with the
following standards:
a. The antennas shall be located upon a structure if possible.
b. If no existing structure which meets the height requirements for mounting
the antennas, the antennas may be mounted upon a supporting pole or
tower not exceeding one hundred fifty feet (150') in height. Such pole or
tower shall be located on a parcel having a dimension equal to the height
of the pole or tower measured between the base of the pole or tower
located nearest the property line and said property line, unless a qualified
structural engineer specifies in writing that the collapse of the pole or tower
will occur within a lesser distance under all foreseeable circumstances.
C. An administrative permit is issued in compliance with the provisions
of chapter 8 of this title.
3. Small wireless facilities and equipment as a permitted use, subject to the followina
standards:
a. A small wireless facility shall only be collocated on the particular wireless
support structure, under those attachment specifications, and at the height
indicated in the applicable permit application.
b. No new wireless support structure shall exceed fifty (50) feet above ground
level in height.
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C. No wireless facility shall extend more than ten (10) feet above a wireless
support structure.
d. Where an applicant proposes to install a new wireless support structure,
the new wireless support structure shall not be located within (600) feet of
any existing wireless support structure.
e. Wireless support structures:
1) All new wireless support structures shall be of a monopole desian
not exceeding eighteen (18) inches in diameter.
(2) All replacement wireless support structure and equipment shall
match the surrounding poles in structure design, materials, and
color.
3) All of a small wireless facility that is affixed to a wireless support
structure shall be the same or similar color of the wireless support
structure as practical.
(4) All electric, telephone, cable, fiber, or other utility lines necessary to
operate a small wireless facility shall be installed within the
applicable wireless support structure where practical and shall not
be coiled or rolled up and externally attached to the wireless support
structure or equipment boxes.
Section 16. This Ordinance shall become effective immediately upon its passage and
publication.
MOTION BY:
SECOND BY:
ALL IN FAVOR:
THOSE OPPOSED:
ADOPTED by the City Council of the City of Otsego this 8' day of April, 2019.
CITY OF OTSEGO
BY:
Jessica L. Stockamp, Mayor
ATTEST:
Tami Loff, City Clerk
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STANDARD SMALL WIRELESS
FACILITY COLLOCATION AGREEMENT
This Standard Small Wireless Facility Collocation Agreement (the "Agreement") made
this day of , 2017, between the CITY OF OTSEGO, MINNESOTA, with
its principal offices located at 13400 90th Street NE, Otsego, NIN 55330 hereinafter designated
as "CITY" and with its principal offices located at
hereinafter designated as "USER". CITY and USER are at times collectively referred to
hereinafter as the "Parties" or individually as a "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 public right-of-way ("ROW");
and
WHEREAS, USER desires to collocate small wireless facilities in and/or upon certain of
CITY'S wireless support structures located within the ROW and/or install, construct, and
maintain new wireless support structures in the ROW; and
WHEREAS, CITY and USER desire to enter into this Agreement to define the terms,
covenants, 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 may enter into a supplement to this
Agreement, in the form attached hereto as Exhibit "A" ("Supplement"), 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. "Communication Facility": 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 6 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 6 cubic feet; and
(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 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.
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g. "Wireless service": means 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. Permitted Uses. Subject to the terms, covenants, and conditions of this
Agreement, USER'S Communication Facility may be used solely for the following purposes: (i)
the transmission and reception of wireless communication signals, including, but not limited to,
wireless and internet services and uses incidental thereto ("USER'S Wireless Services"); and (ii)
for the purpose of installing, repairing, maintaining, removing and operating USER'S
Communication Facility in accordance with this Agreement and in accordance with the
transmission and reception of wireless communications signals authorized for use by USER by
the Federal Communications Commission ("FCC") ("Permitted Uses"). The use of CITY'S
wireless support structures and ROW by USER is nonexclusive, and CITY reserves the right to
all CITY'S wireless support structures and ROW to be used by others, provided they do not
interfere with USER'S use of USER'S Communication Facility. USER shall collocate and use
each Premises (as hereinafter defined) only in accordance with the terms, covenants, and
conditions of this Agreement, good engineering practices and in compliance with all applicable
Federal Communications Commission ("FCC"), and other federal, state, and local ordinances,
statutes, laws, and regulations.
b. Before USER shall collocate any Communication Facility 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, and shall hereinafter be referred to as the
"Premises". USER shall submit an application in the form attached hereto as Exhibit `B" (the
"Application") along with a proposed Supplement for each proposed Premises, and shall comply
with all the terms, covenants, and conditions of this Agreement.
C. 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.
3
d. 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 Administrator or his/her designee.
e. USER shall have the non-exclusive right, at its sole cost and expense, to use each
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").
f. Regarding USER'S application for each individual Supplement: If, in the
judgment of CITY, USER'S proposed use of the CITY'S wireless support structure or ROW is
inconsistent with the CITY'S use thereof and does not comply with the terms, covenants, or
conditions of this Agreement, or any of CITY'S ordinances, rules, or regulations, the CITY in its
sole discretion shall have the right to deny the Application of USER. CITY shall within ninety
(90) days after receipt of a fully completed and executed Application and a Supplement by
USER, notify USER in writing whether the Application is approved or denied. If CITY does not
notify USER within ninety (90) days from the date that the Application was submitted, the
Application shall be deemed approved, unless the ninety (90) day period has been tolled as
provided by state law. CITY shall determine whether or not the Application is fully complete.
g. With each Application and Supplement, USER shall furnish CITY detailed
Construction Plans and Specifications for each individual Premises ("Plans"), together with
necessary maps, indicating specifically the wireless support structures and ROW of CITY USER
proposes to be used for USER'S Communication Facility, 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 ("Replacement Wireless Support
Structures"), any additional wireless support structures which may be required ("New Wireless
Support Structures"), and any new installations for utility transmission conduit, pull boxes, and
appurtenances (the "Work"). Upon execution of a Supplement by USER, for each premises
USER shall have the right to use the Premises for USER'S Communication Facility and may
proceed with the Work in accordance with the terms of the Application, Plans, Supplement, and
this Agreement. USER and its contractors and employees 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.
h. All wireless support structures used by USER under this Agreement, including
any Replacement Wireless Support Structure or New Wireless Support Structure installed by
USER, shall remain and/or become the property of CITY, and any cost and/or expense incurred
by the USER for changes to existing wireless support structures, conduits, conductor pull boxes,
facilities, and appurtenances, or related equipment, or installation of any Replacement Wireless
Support Structures, or New Wireless Support Structures, conduits, conductor pull boxes,
facilities, or appurtenances, or related equipment under this Agreement shall not entitle USER to
ownership of any of said wireless support structures, conduits, conductor pull boxes, facilities,
appurtenances, or related equipment.
USER shall upon the completion of the installation of a Replacement Wireless Support
Structure or New Wireless Support Structure deliver to the CITY a bill of sale of the applicable
0
Replacement Wireless Support Structure or New Wireless Support Structure in the form attached
hereto as Exhibit "C" ("Bill of Sale").
i. CITY reserves the right, in its sole discretion, to exclude any of CITY'S wireless
support structures, conduits, conductor pull boxes, appurtenances, 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, statutes, rules, or ordinances.
III. PREMISES.
Pursuant to all of the terms, covenants, and conditions of this Agreement, and the
applicable Application and Supplement executed by CITY, CITY may approve USER'S
application for a particular Premises described in the Supplement, for the installation, operation
and maintenance of Communication Facilities; together with the non-exclusive right of ingress
and egress over the applicable ROW, seven (7) days a week, twenty-four (24) hours a day 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 the health, safety, and welfare of the citizens of the CITY and
the general public ("Primary Use"). CITY'S operations and use of the Property take priority over
USER'S operations.
USER agrees that the following priorities of use, in descending order, shall apply in the
event of interference with CITY's Communication System for 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'S use;
(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'S Permitted Use.
In the event there 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
("Public Threat"), the CITY may take any and all actions the CITY determines are required to
address such Public Threat 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 Public Threat would be benefited by
cessation of USER'S operations of the applicable USER'S Equipment, USER shall immediately
5
cease its operations on the Premises upon notice from CITY to do so, and the Term (as defined
herein) of the applicable Supplement shall terminate.
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 its Approved Use ("Utility
Plan"). All electric, telephone, cable, fiber, or other utility necessary for operation of USER'S
Communication Facility, hereinafter referred to jointly as "Utilities" shall be installed
underground by use of directional boring or within the applicable wireless support structure.
CITY shall, in its sole discretion, notify USER that it approves, denies, or modifies the plan
within ninety (90) business days of receipt of the Utility Plan, and in the case of any denial or
modification of the Utility Plan, 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 USER'S
Communication Facility ("Structural Study"). Said study must be signed by an engineer licensed
in Minnesota per Minnesota Rule 1800.4200 and Minnesota Statutes Chapter 326. If the
Structural Study finds that any proposed structure is inadequate to support the proposed loads of
USER'S Equipment, USER shall not install the Communication Facility and the Application
shall be denied.
IV. INSTALLATION OF EQUIPMENT.
a. Construction Plans
For the initial installation of all USER'S Communication Facilities 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:
Line or CAD drawings showing the location and materials of all planned installations of
USER'S Equipment and an Engineer's Estimate of all materials and construction methods;
Diagrams, Shop Drawings, and Pictures of the applicable USER's Communication
Facility;
A complete and detailed inventory of all USER's antennas, cables, and other personal
property of USER'S Communication Facility to be installed on the Premises. CITY retains the
right to survey the installed Communication Facility.
All Plans shall be easily readable and subject to prior written approval by CITY, prior to
installation of the applicable USER'S Communication Facility, which approval shall not be
withheld, conditioned or delayed without cause. In accordance with Section II.f, above, CITY
shall have ninety (90) days to review and comment on the Plans. Should the Plans need to be
0
revised based on the comments provided by CITY and/or the CITY'S structural engineer, no
construction of the applicable USER'S Communication Facility shall commence until final
approval has been granted by CITY. The 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. CITY review and response shall be at USER's
expense.
b. Construction Scheduling
At least ten (10) business days prior to USER'S construction mobilization for installation
of USER'S Communication Facility for the applicable Premises, USER shall conduct a meeting
with CITY and all the applicable contractors on the Premises or other location as agreed upon
and at a minimum the meeting shall be attended by a representative of CITY and USER'S
contractors and all of the parties involved in the installation of USER'S Communication Facility.
C. Construction Inspection
All construction activity shall be subject to inspection and approval by CITY and/or
CITY'S engineers. 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 the installation of USER'S Communication Facility by CITY and/or
its engineers.
d. USER'S Exposed Communications FacilitX
All of USER'S Communication Facility that is to be affixed to a wireless support
structure on the Premises which has exterior exposure shall be as close to the color of the
wireless support 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.
Damage by USE
Any damage to the Property, the Premises, or CITY'S wireless support structures or
equipment caused by USER in any manner shall be repaired or replaced at USER's sole cost and
expense and to CITY'S satisfaction within thirty (30) days of written notice by CITY to USER
setting forth the required repairs.
f. As -Built Drawings
Within thirty (30) days after USER activates the USER'S Communication Facility,
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 of the Communication Facility
installed at the applicable Premises or Property, which shall show the actual location of all
7
USER'S Communication Facility equipment. Said drawings shall be accompanied by a complete
and detailed site survey of the Property and an inventory of all USER'S Communication Facility
equipment.
g. Permits for Installation
USER is required to obtain from CITY, or any other applicable governing agency, any
and all permits required for a complete installation of USER'S Communication Facility or any
utilities necessary for the operation of USER'S Communications Facility, at USER'S sole cost
and expense. Said permits shall include, but not be limited to: ROW Permits
Obstruction/Excavation, Small Wireless Facility Permit, Meter Hooding, Storm Water, etc.
permits ("Permits"). Applicable fees for any permit 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.
i. Alteration or Modifications
USER may not add, change, modify or alter any of USER'S Communication Facilities
from that set forth and/or shown on the applicable Plan or as then currently constructed, without
the prior written approval of the CITY, which approval shall not be unreasonably withheld,
conditioned or delayed; provided, however, USER may repair and maintain the USER'S
equipment and may replace USER'S existing equipment with equipment that is substantially
similar in appearance, without CITY'S approval, provided the replacement equipment meets all
of the conditions of this Agreement including all applicable Ordinances of CITY. USER agrees
to reimburse CITY for all reasonable costs incurred by the CITY in connection with any
alteration, modification, or addition to USER'S Communication Facility pursuant to this
paragraph, including but not limited to plan review, structural review, site meetings, inspection
time, and as -built updating because of USER'S changes, and attorney's fees for drafting and/or
reviewing documents.
V. MAINTENANCE AND REPAIR OF WIRELESS SUPPORT STRUCTURES,
PROPERTY, AND PERMITTEE'S COMMUNICATION FACILITIES.
a. Wireless Support Structures and Property
CITY reserves the right to take any and all action CITY deems necessary, in its sole
discretion, to repair, maintain, alter, or improve CITY'S wireless support structures, Premises,
and Property.
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b. Structure Reconditioning and Repair
(1) From time to time, CITY paints, reconditions, or otherwise improves or repairs
the wireless support structures, Premises and Property or improvements thereon
("Reconditioning Work"). USER shall cooperate with CITY to allow CITY to carry out
Reconditioning Work in a manner that minimizes interference with CITY'S Reconditioning
Work.
(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 of the Reconditioning
Work CITY intends to perform. Upon receiving such notice, it shall be the sole responsibility of
USER to take adequate measures to cover or otherwise protect the applicable USER'S
Communication Facility from the consequences of such activities, including but not limited to
paint, splatter and/or debris fallout. CITY reserves the right to require USER to remove all
USER'S Communication Facility during CITY'S Reconditioning Work.
(3) During CITY'S Reconditioning Work, and with written approval of CITY in
CITY'S 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 for USER'S Communication Facility during the Reconditioning Work.
(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 and expense
related to the modification of CITY'S procedures for Reconditioning Work.
C. Premises
USER shall, at its own cost and expense, maintain the USER'S Communication Facility
in good and safe condition, and in compliance with applicable fire, health, building, and other
life safety codes. USER shall obtain from CITY any and all permits required for the purposes of
maintaining the USER's Communication Facility and pay all applicable fees for any permits
required by the CITY.
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 the CITY.
VI. CONDITION OF PREMISES.
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Where the Premises and/or Property includes one or more wireless support structures,
CITY will keep and maintain the wireless support structures in good repair and condition as
CITY deems necessary for their primary use and in the ordinary course of business of CITY.
CITY makes no warranty or guarantee as to the condition of any Premises with regard to
USER'S intended use of the same.
VII. TERM, RENT, AND FEES.
a. Term. This Agreement shall be for a term of ten (10) years ("Initial Term")
commencing upon the execution hereof by both Parties. Each Supplement shall be effective as of
the date of execution of the applicable Supplement by both Parties (the "Effective Date"). The
initial term of each Supplement shall be for ten (10) years and shall commence based on the first
day of the month following the day that the applicable Supplement is signed by the CITY (the
"Commencement Date") and shall terminate on the termination of the initial term or any
applicable Renewal Term. CITY shall notify USER in writing of the Commencement Date for
each Supplement. On the Commencement Date of each Supplement, payment of the applicable
Rent shall commence and be due at the annual Base Rent as set forth in this Agreement and shall
be paid hereinafter as set forth. CITY and USER acknowledge and agree that payment of the
initial Base Rent and any electrical service reimbursement payment, as hereinafter described, for
each supplement shall be made by USER within sixty (60) days of the applicable
Commencement Date.
b. Rent. 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/Dollars ($175.00) per year for rent and maintenance of each Premises described in the
Supplement (i.e., wireless support structure) upon which USER has been granted approval for
USER's Communication Facility.
If practical, as determined by USER in its sole discretion, and if permitted by the local
utility company servicing the Premises, USER shall contract with said local utility company, to
furnish and install an electrical meter for the measurement of electrical power used by USER'S
installation and USER shall be responsible for the cost of the installation of the meter and all
electricity used by USER and shall be billed separately by the applicable utility company. If an
electric meter is not installed, as set forth above, the CITY shall be paid a monthly fee of (i) $73
per radio node less than or equal to 100 max watts; (ii) $182 per radio node over $100 max watts,
or the actual costs of electricity, if the actual costs exceed the amounts in item (i) or (ii).
The first year's Base Rent and any Electrical Service Reimbursement payment due on all
Supplements with a Commencement Date other than January 1, shall be prorated to the end of
the year in which the Commencement Date occurs. For example, for all Supplements executed
by CITY and USER, the first year's Base Rent and Electrical Service Reimbursement (if any)
shall be prorated to the end of 2019 based on the actual Commencement Date for year 2019 and
the remaining days in 2019. Similarly, for all Supplements that expire or otherwise terminate on
a date other than December 31, the Base Rent and Electrical Service Reimbursement (if any)
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 Base Rent and
10
Electrical Service Reimbursement (if any) in the year of the Commencement Date, the Base Rent
and Electrical Service Reimbursement (if any) due hereunder for all subsequent years shall be
paid prior to January 1St of each succeeding year.
USER shall pay CITY in addition to Base Rent, the following if not already paid by
USER: (i) all building and Permit fees; (ii) an administrative fee for this Agreement in the
amount Two Thousand Five Hundred and No/100 Dollars ($2,500.00) and an administrative fee
of One Thousand and No/100 dollars ($1,000.00) for each Supplement ("CITY'S Administrative
Fees"), which shall be paid within sixty (60) days after the CITY sends USER an invoice for the
applicable CITY'S Administrative Fees for this Agreement or for any Applications submitted by
USER whether or not CITY grants the USER the permit for the applicable USER'S
Communication Facility. All invoices for Administration Fees shall be sent to USER at the
following address:
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 the Base Rent and Electrical Service
Reimbursement (if any) by electronic funds transfer and in such event, CITY agrees to provide to
USER the CITY'S bank routing information for such purpose upon request of USER.
VIII. EXTENSIONS.
This Agreement shall be automatically extended for three (3) additional five (5) year
terms (such five (5) year term is referred to as a "Renewal Term") unless USER terminates this
Agreement at the end of the Initial Term or any Renewal Term by giving CITY written notice of
the intent to Terminate at least three (3) months prior to the end of the then current Term.
Each Supplement shall be automatically extended for three (3) additional five (5) year
terms, or until the expiration or termination of this Agreement, whichever is earlier, unless
USER terminates the applicable Supplement at the end of the applicable Supplement's Initial
Term ("Supplement Initial Term") or any Renewal Term of the applicable Supplement
("Supplement Renewal Term") by giving CITY written notice of the intent to terminate at least
three (3) months prior to the end of the then current term. The Supplement Initial Term and all
Supplement Renewal Terms or the Initial Term or any Renewal Term of this Agreement 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 this Agreement. In the event that
11
(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 the NOTICE section of this Agreement; (b) upon such later date as designated by
USER; or (c) upon USER's removal of USER'S Communication Facility as required under the
terms and conditions of this Agreement. All Base Rent 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.
►:ice �►t�-iY_17:���
a. The Parties hereby waive and release any and all rights of action for negligence
against the other, its officers, directors, employees, and agents which may hereafter arise on
account of damage to the wireless support structure, the Premise or Property resulting from any
fire, or other casualty of the kind covered by standard fire insurance policies with extended
coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter
carried by the Parties, or either of them. These waivers and release shall apply between the
Parties and they shall also apply to any claims under or through either Party as a result of any
asserted right of subrogation. All such policies of insurance obtained by either Party concerning
the Premises or the Property shall waive the insurer's right of subrogation against 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 be 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 of Minnesota and Employer's Liability with a limit of
12
$1,000,000 each accident/disease/policy limit and shall provide for waiver or 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, or
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.
XIV. INTERFERENCE.
a. USER shall obtain and provide CITY, at USER'S sole cost and expense, a radio
frequency interference study ("RF Report") carried out by an independent professional radio
frequency engineer ("USER'S RF Engineer") showing that the use of USER'S proposed "radio
frequency," as shown on any Application will not interfere with any existing, licensed
communications facilities on the Premises, or CITY'S communications facilities ("CITY'S
Communication System"). The USER'S RF Engineer shall provide the applicable RF Report to
CITY on or before thirty (30) days of the applicable Application.
b. USER shall provide CITY with a radiation study of USER'S proposed
Communication Facility equipment, to be used in any of USER'S Communication Facilities,
showing there is no risk or danger to the general public from USER'S proposed Communication
Facility equipment ("Radiation Report"). CITY may have the Radiation Report reviewed by
CITY'S radiation engineer ("Radiation Engineer") to determine if there is a risk or danger to the
general public from USER'S Communication Facility. If there is a danger to the public from
USER'S proposed Communication Equipment, USER shall not use said equipment in any of
USER'S Communication Facilities. USER shall be responsible for all cost relating to the
Radiation Report and the review of the Radiation Report by CITY'S Radiation Engineer.
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
and permit USER to implement all reasonable measures in order for USER to fulfill FCC
obligations. CITY agrees that in the event any future party causes an applicable Premises to
13
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.
d. USER agrees to install USER'S Communication Facility in compliance with all
terms and conditions of this Agreement and all FCC rules and regulations, and good engineering
practices and according to the Plans, Application, applicable Supplement and this Agreement.
USER further agrees that the USER'S use of the USER'S Communication Facility will not cause
radio frequency interference to CITY'S Communication Systems, provided such systems are
lawfully installed and operated.
In the event of interference with CITY'S Communications System, USER shall, within
twenty-four (24) hours after USER'S receipt of notice of such interference from CITY, as
provided in this Section eliminate the interference or cease using USER'S interfering equipment,
except for short tests necessary for the elimination of the interference, until the interference is
cured to the reasonable satisfaction of the CITY. If USER, in the event of interference with
CITY'S Communication Systems, fails to correct the interference within twenty-four (24) hours
or cease using the interfering equipment within said time, except for testing purposes, or
demonstrate that USER'S Communication Facility is not the cause of the interference, USER
shall cease operation of its Communication Facility or provide CITY with evidence the USER'S
Communication Facility is not the cause of the interference. It is further agreed that CITY does
not guarantee to USER non-interference to the operation of USER'S Communication Facility by
CITY'S Communication Systems or other current users of the Premises or Property (if any).
CITY will use its best efforts to notify other users of the Premises or Property of the interference
among USER and other users of the Premises or Property.
The Parties agree that such reasonable evidence of interference that is likely caused by
USER'S use or operation of USER'S Communication Facility warrants an emergency response
and the Notice provision of this Agreement shall not apply. Rather, CITY shall provide USER
reasonable evidence that the interference is likely caused by the USER'S use or operation of
USER'S Equipment verbally by telephone to USER'S Network Operations CENTER at C__)
Upon CITY providing USER notice of reasonable evidence that any interference is likely
caused by USER'S use or operation of USER'S Equipment USER shall send a qualified
technician or representative to the Premises within eight (8) hours from the time that the notice
of reasonable evidence is provided by CITY. The required eight (8) hour emergency response
time under these circumstances is applicable 24 hours a day, 7 days a week. The qualified
technician or representative shall be capable of assessing the situation and eliciting the necessary
response, including any repairs, alterations, or modifications to USER'S Communication
Facility.
Prior to adding and/or modifying USER'S Communication Facility or any frequencies on
a wireless support structure or the Premises, as permitted under this Agreement, USER agrees to
notify the CITY of the modified frequencies so that CITY can determine whether or not the
modified frequencies will cause radio interference to CITY'S Communication Systems. Or other
licensees and/or occupants on the applicable wireless support structure or Premises. Upon
14
request of CITY, USER shall, at USER'S cost and expense, provide CITY with an interference
study showing there is not any interference with CITY'S Communication Systems as a result of
the modification of the frequencies. The CITY, in its sole discretion, shall retain the right
provided herein to submit the interference study results to CITY'S RF Engineer for review. If the
USER fails to perform an interference study requested by CITY and submit the results to the
CITY, the CITY may have an interference study performed and the USER shall pay the CITY
the cost of said interference study.
XV. REMOVAL AT END OF TERM.
USER shall, prior to expiration of the Term, or within ninety (90) days after any earlier
termination of a Supplement, remove USER'S Communication Facility, conduits, fixtures, and
all personal property and restore the applicable wireless support structure and Premises to its
original condition, reasonable wear and tear excepted. CITY agrees and acknowledges that all of
USER'S Communication Facility, 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 USER fails to remove USER'S Communication Facility, 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 the Application required by this
Agreement USER shall at its cost and expense deliver to CITY an irrevocable letter of credit
("Letter of Credit") in favor of CITY in the principal amount of Fifty Thousand and No/100
Dollars ($50,000.00) to secure USER'S obligation to remove USER'S Communication Facilities
according to the terms and conditions of this Agreement. In the event USER fails to remove
USER'S Communication Facilities and restore the Property, reasonable wear and tear and
casualty damage excepted, CITY may do so and USER shall reimburse CITY for all costs
incurred by CITY, including but not limited to CITY staff time and legal, planning or
engineering services, related to CITY's removal of the USER'S Communications Facility and
restoring the Property. CITY may draw upon the Letter of Credit in an amount that will
reimburse CITY for its actual costs to remove any of USER'S Communication Facilities and any
amount remaining of the Letter of Credit after the removal of USER'S Communication Facilities
by CITY will be refunded to USER. If the Letter of Credit is insufficient to cover CITY's costs
of removing any of USER'S Communication Facilities, USER shall pay to CITY the deficiency
within thirty (3 0) days of written notice of the amount of the deficiency. USER shall pay CITY
for any storage of USER's Communications Facilities if removed.
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" and "where 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,
15
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. No change of stock ownership, partnership interest, or control
of USER shall constitute an assignment hereunder. This Agreement and each Supplement may
not be sold, assigned, or transferred without the express written consent of CITY. USER shall
provide written notice of all sales, assignments, or transfers within 60 days thereof. In the event
CITY approves 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
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: City of Otsego
Attn: City Administrator
13400 901h Street NE
Otsego, MN 55330
USER:
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained
pursuant to the foregoing.
XIX. DEFAULT
NO
In the event there is a breach by a Party with respect to any of the provisions of this
Agreement or any Supplement or its obligations hereunder, 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
Parry 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 Parry's failure to cure a breach
within the time period set forth herein shall constitute a "Default".
XX. 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
Communication Facility 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.
XXI. 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.
XXIII. APPLICABLE LAWS
USER shall, at USER'S sole cost and expense, comply with (a) all ordinances, rules, laws
and statutes of all applicable governmental agencies including, but not limited to, the CITY'S, to
the extent that they relate to USER'S use of the Premises; and (b) all building codes due to the
collocation of USER'S Communication Facility being made by USER to a wireless support
structure and/or Premises; and (c) all Permits.
17
XXIV. 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 petition or date of the closing. All rentals paid to said
termination date shall be retained by CITY. 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.
XXV. 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.
XXVL MISCELLANEOUS
a. Approval of Supplement. Each Supplement to this Agreement shall be executed
by the Mayor and City Administrator after the USER has complied with all of the terms,
covenants, and conditions of this Agreement and the applicable Application has been approved.
b. Authority. Each of the Parties hereto warrants to the other that the person or
persons executing this Agreement on behalf of that Party has the full right, power, and authority
to enter into and execute this Agreement on that Party's behalf and that no consent from any
other person or entity is necessary as a condition precedent to the legal effect of this Agreement.
C. Complete Agreement; Amendments. This Agreement supersedes all prior
discussions and negotiations and contains all agreements and understandings between the CITY
and the USER. This Agreement may only be amended in writing signed by all Parties. All
Exhibits are incorporated into this Agreement by reference.
d. Binding Effect. The terms and conditions of this Agreement shall run with the
Premises and Property, inure to the benefit of and be binding on the respective Parties and their
respective successors and permitted assignees.
e. Enforcement and Attorneys' Fees. The prevailing Party in any action or
proceeding in court to enforce the terms of this Agreement including any appeals shall be
entitled to receive its reasonable attorney's fees and other reasonable costs and expenses from the
non -prevailing party.
18
f. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of Minnesota.
g. Severability. If any term of this Agreement is found to be void or invalid, such
invalidity shall not affect the remaining terms of this Agreement, which shall continue in full
force and effect.
h. Estoppel Information. Each Party shall from time to time, within sixty (60) days
after written request from the other Party, execute, acknowledge and deliver an estoppel
certificate indicating that this Agreement and any amendments hereto are in full force and effect,
setting out the current monthly rental amount, date rent is paid through, expiration date of the
then current term, and acknowledging that there are not, to such Party's knowledge, any uncured
defaults, or specifying such defaults, if any, are claimed.
i. Brokers. If either Party is represented by a real estate broker in this transaction,
that Party shall be fully responsible for any fee due such broker in this transaction, and shall hold
the other Party harmless from any claims for commission by such broker.
j. No Waiver. No provision of this Agreement will be deemed waived by either
Party unless expressly waived in writing by the waiving Party. No waiver shall be implied by
delay or any other act or omission of either Party. No waiver by either Parry of any provisions of
this Agreement shall be deemed a waiver of such provision with respect to any subsequent
matter relating to such provision.
k. Recitals. The Recitals set forth above in this Agreement are hereby incorporated
in this Agreement as though they were set forth in the body hereof.
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their
respective seals the day and year first above written.
CITY:
City of Otsego, Minnesota
By
Date:
By: _
19
Jessica L. Stockamp
Title: Mayor
G
Tami Loff
Date:
USER:
By: _
Name:-
Title:—
Date:
ame:Title:Date:
20
Title: City Clerk
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 Otsego,
Minnesota, with its principal offices located at 13400 901h Street NE, Otsego, Minnesota 55330
("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 '2019, (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
Otsego, Minnesota; the Premises approved by the CITY for USER'S use
hereunder is described on Exhibit "1" 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, ifan 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 installed by
USER pursuant to the Plans at the location shown on Exhibit "1" attached hereto upon
completion of the installation of the wireless support structure shall be conveyed to the CITY
without consideration to or from CITY pursuant to a Bill of Sale. CITY will thereafter be
responsible for the wireless support structure as provided in the Agreement. USER shall at
21
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:
City of Otsego, Minnesota
By: [EXHIBIT ONLY - NOT FOR EXECUTION]
Jessica L.Stockamp
Title: Mayor
Date:
AND
By: [EXHIBIT ONLY - NOT FOR EXECUTION]
Tami Loff
Title: City Clerk
Date:
USER:
By: [EXHIBIT ONLY - NOT FOR EXECUTION]
Name:
Title:
Date:
22
EXHIBIT 46
1"
Premises (Include Map, Wireless Support Structure Diagram, Site Plan and Table Listing All
Wireless Support Structure Locations)
23
EXHIBIT "B"
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: Phone Number: Fax Number:
Billing Address: City: State: Zip:
Company Job/ID Number:
LOCATION:
DESCRIPTION OF WORK:
STRUCTURAL REPORT
CONSTRUCTION SCHEDULE: Start Date: Number of Construction Days During
Schedule:
Completion Date:
By signing this application, I (the applicant/company) hereby acknowledge that 1 must adhere to all provisions of the
City Code Title 8 Chapter 6 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: Agenda Item Number: Approved Plan Number:
Application Received: Decision Deadline: Date Stamp:
24
EXHIBIT "C"
BILL OF SALE
FOR VALUABLE CONSIDERATION, ("Seller") sells
and conveys to the City of Otsego, Minnesota ("Buyer"), the following personal property: one
(1) wireless support structure except any of Seller's communications equipment affixed thereto
(the "Personal Property") located in the public right-of-way of
in the City of Otsego, State of Minnesota as described in Standard Small Wireless Facility
Collocation Agreement Supplement between the Buyer and Seller dated the day
of , 2019.
SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE
PERSONAL PROPERTY'S MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE. BY ITS ACCEPTANCE OF THIS BILL OF SALE, BUYER ACKNOWLEDGES
THAT IT HAS FULLY INSPECTED THE PERSONAL PROPERTY AND BUYER ACCEPTS
THE SAME.
This Bill of Sale merely conveys to Buyer all right, title and interest, if any, of Seller in
the Personal Property, but this shall not convey any of the communications equipment or
appurtenances of Seller that are collocated, installed, attached, mounted, or otherwise connected
to the Personal Property.
This Bill of Sale contains the entire agreement and representations of the parties related
to the sale of the Personal Property, may not be altered except by a written instrument signed by
both parties, and shall be construed in accordance with the laws of the State of Minnesota.
SELLER:
By:_
Name:
Title:
Date:
25