CR 2000-077 Approve Second Amendment to Site Lease Agreement Between City Of Hopkins and Apt Minneapolis
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April 28, 2000
Council Report 2000-77
Approve Second Amendment to Site Lease Agreement between City of Hopkins and
APT Minneapolis, Inc.
Proposed Action.
Staff recommends adoption of the following motion: Move that Council authorize the
Mayor and City Manaaer to sian the second amendment to a site lease aareement
between the City of Hopkins and APT Minneapolis. Inc. to allow the installation of six (6)
additional antennas on the Moline water tower.
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Overview.
In February, 1997 City Council authorized the installation of six (6) antennas on the
Moline water tank. The current lease payment for the existing six antennas is $12,502
per year with 5% annual increases. APT Minneapolis was not agreeable to the terms
within the current lease agreement regarding installation of additional antennas. City
staff negotiated an amendment calling for annual lease payments of $17,860 per year
subject to 5% per year increases.
Primary Issues to Consider.
. Terms of current lease agreement
The current lease agreement requires that the lease payment increase proportionately
for additional antennas. APT Minneapolis, Inc. is unwilling to pay $25,004 per year for
12 antennas. They contend that the market rate for 12 antennas is far less than
$25,000. With the upcoming tank rehab and painting, APT must invest additional costs
in their antenna system. If staff held to the current lease rates they would invest in
paying to remove their equipment and find a cheaper location. Staff believes the
proposed $17,860 per year payment with 5% increases is a fair and reasonable rate.
Supportina Information
. ~~o~:~~; .~.nd Amendment to Lease Agreement
\F >\"
Steven J. Stadler
Public Works Director
Financial Impact: $ 17.860 per year revenue Budgeted: yes - $12.502/yr
Related documents (CIP, ERP, etc.): Current site lease aareement
. Notes: Additional $5.358 per year
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MILLER, STEINER & CURTISS, P.A.
PROFESSIONAL ASSOCL<\. TION
A TTORNEYS AT LA W
JERRE A, MILLER
JEREMY S. STEINER *
WYNN CURTISS
400 NORWEST BANK BUILDING
1011 FIRST STREET SOUTH
HOPKINS, MINNESOTA 55343
.Real Property Law Specialist, certihed
by the Minnesota Slale Bar As,ociation
952-938-7635
FAX 952-938-7670
MEMO
Date: April 24, 2000
To: Steven Stadler
From: JetTe Miller
Re:
Attached are four original Second Amendments sent to me by Renee K. Zirbes who is the attorney
for APT.
I have compared the language to the Amendment sent to APT previously. The only change appears
to be the lease amount you negotiated with them,
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That being the case, the Amendments are?pra~ for signature by the City.
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SECOND AMENDMENT
TO
SITE LEASE AGREEMENT
This Second Amendment to Site Lease Agreement (the "Second Amendment") is made as
of April
, 2000 (the "Effective Date"), between the CITY OF HOPKINS, a Minnesota
municipal corporation ("Landlord"), and APT MINNEAPOLIS, INC., a Delaware corporation
("T enant").
STATEMENT OF FACTS
A.
Landlord and Tenant are parties to that certain Site Lease Agreement dated February 11,
1997 (the "Original Agreement"), as amended by that certain First Amendment to Site Lease
Agreement, dated February 11, 1997 (the "First Amendment"), with respect to certain
antenna space on the Landlord's water tower (the "Water Tower") which is located on real
property owned by Landlord and located in the County of Hennepin, State of Minnesota (the
"Tower Site"). Hereinafter, the Original Agreement and First Amendment shall collectively
be referred to as the "Agreement."
B. Landlord and Tenant desire to amend the Agreement to allow for additional equipment to be
located on the Water Tower and at the Tower Site and to address certain other matters.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency ofwmch is hereby acknowledged and confessed, Landlord
and Tenant hereby agree as follows:
1. RENT. Section 2(a) of the Agreement is hereby deleted in its entirety and replaced with the
following:
a) Amount, Adjustments. As consideration for this Lease, Tenant shall pay Landlord
as annual rent as follows:
i) prior to the date the New Facilities (as defined Section 3(b) below) are
installed at the Premises, rent shall be paid in the amount of Twelve Thousand Five
Hundred Two and Noll 00 Dollars ($12,502.00), subject to five percent (5%) per year
increases beginning January 1, 2001, and each January 1 thereafter;
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ii) commencing on the date the New Facilities are installed at the Premises, rent
shall be paid in the amount of Seventeen Thousand Eight l-hmdred sixty and Noll 00
Dollars ($17,860.00), subject to five percent (5%) per year increases beginning on
January 1 of the year after the first full calendar year after the date the New Facilities
are installed at the Premises.
If the Term, or annual payment obligation increases, commences or terminates on
other than the first or last day of any calendar year, respectively, rent and other payments due
hereunder shall be apportioned according to the actual commencement or termination date.
Ifless than all of the New Facilities are installed at the Premises, the annual rent required
under subparagraph (ii) above shall be proportionally adjusted based on twelve (12) antennas
and annual rent of$17,860.00.
2.
GOVERNMENTAL APPROVALS. Section 3(b) of the Agreement is hereby deleted in its
entirety and replaced with the following:
b) Interference Study. Radio frequency interference and structural engineering studies
have already been completed and approved by Landlord for the initial six (6) antennas and
related facilities already located on the Leased Premises (the "Existing Facilities"). Before
obtaining a building permit for the additional six (6) antennas and related facilities (the ''New
Facilities"), Tenant shall pay the reasonable cost of (i) a radio frequency interference study
carried out by an independent and qualified professional selected by the landlord showing
that Tenant's intended use of the New Facilities will not interfere with any existing
communications facilities and such cost not to exceed $300.00, and (ii) an engineering study
showing that the Structure is able to support the Tenant's New Facilities without prejudice
to the city's use of the Structure such cost not to exceed $3,000.00. Ifthe study tinds that
there is potential for interference that cannot be reasonably remedied or that the Stmcture is
unable to safely bear the weight of the New Facilities, Landlord shall refund additional rental
payments received from Tenant for the New Facilities. Tenant shall continue to operate the
Existing Facilities without adding the New Facilities for the remainder of the Site Lease
Agreement terms. Hereinafter, the Existing Facilities and the New Facilities shall each be
included in the defined term "Antenna Facilities" (as defined in Section 5(b) below).
3.
TENANT'S USE.
3.1. Section 5(b ). Replace the fourth sentence of this section with the following:
Tenant selected and Landlord approved the location of the Existing
Facilities. Tenant shall have the right to determine the location of the
New Facilities and any additional Antenna Facilities, subject to the
Landlord's approval.
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3.2. Section S(c). Section S(c) of the Agreement is hereby deleted in its entirety and
replaced with the following:
c) Construction. Tenant shall have the right to erect and operate up to twelve
(12) antennas and related facilities at the Leased Premises. Tenant has erected and
may continue to operate the Existing Facilities in accordance with Exhibit B. Tenant
may, subject to necessary approvals from the City Councilor other decision makers
for the City of Hopkins, erect and operate the New Facilities in accordance with
Exhibit B-2. If Tenant seeks to increase the number of antennas, beyond the Existing
Facilities, it must first pay for an evaluation carried out by a qualified professional,
retained by Landlord, demonstrating that (i) additional antenna will not interfere with
then existing antennas or with proposed antennas, and that (ii) any Structure can
struChrrally support the additional antennas. The cost for antenna evaluation shall not
exceed $300.00 and the cost for structural evaluation shall not exceed $3,000.00.
The evaluation cost must be paid by the Tenant within thirty (30) days after receiving
written notice of the cost. Landlord must consent to installation of additional
antennas, and consent will not be unreasonably withheld or delayed. If Landlord
consents, the rent for the additional antenna(s) (beyond the Existing Facilities and
New Facilities) will be proportionally adjusted based on twelve (12) antennas and
annual rent of$17,860.00.
3.3. Section Sed). Replace the second sentence of this section with the following:
. Tenant's installation oftlle Existing Facilities was done according to
plans approved by Landlord. Tenant's installation of the New
Facilities shall be done according to plans approved by Landlord,
which approval shall not be unreasonably withheld or delayed.
3.4. Section S(i). Replace the first and second sentences of this section with the
following:
During the term of this Lease, Tenant shall have access to the Leased
Premises, including without limitation access via the Water Tower's exterior
ladder system once the existing ladder system is replaced in Spring 2000, in
order to install, operate, repair and maintain the Antenna Facilities. Tenant's
actual access to the Leased Premises shall be accomplished by Landlord's
officials/personnel illllocking the Water Tower and other parts of the Leased
Premises, as necessary, for Tenant.
4.
CONSTRUCTION. Except as hereby amended, the Agreement shall remain illlchanged and
in full force and effect. If there is any contlict between the terms and provisions of the
Agreement and the terms and provisions of this Second Amendment, this Second
Amendment shall control.
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as
of the day and year first above written.
LANDLORD:
CITY OF HOPKINS
By:
(Print Name)
Its:
By:
(Print Name)
tIIIt Its:
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TENANT:
APT MINNEAPOLIS, INC.
By:
(Print N2{l
Its: I~{tr
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EXHIBIT B-2
Dia~ram of New Facilities;
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HOPKINS WATER TOWER
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SECTION AND
ELEVATIONS
916 COUNTY 3
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