CR 99-215 Request By US West Cellular To Lease Space On Radio Tower
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December 7, 1999
Council Report 99-215
REQUEST BY US WEST CELLULAR TO LEASE SPACE ON RADIO TOWER
Proposed Action
Staff recommends approval of the following motion: Move to approve a proposal by US
West Cellular Communications to lease space on the Police Department radio tower for
installation of cellular equipment and antennas.
Overview
US West Cellular Communications approached the police department about the
feasibility of placing cellular antennas or other equipment on the police department radio
tower. The purpose of the request is to permit better cellular phone signal reception in
the portions of Hopkins which would be covered by the equipment. US West has
previously negotiated a similar contract with the Hopkins HRA for placement of cellular
equipment on the Dow Towers building.
Primary Issues to Consider
. Will the agreement result in any cost to the City?
. Is the radio tower, in its current condition, capable of supporting the additional
equipment?
· Will the US West equipment result in interference with the police/fire radio
transmissions?
· Will the agreement result in any benefit to the City?
Supporting Documentation
. Proposed lease agreement
/,"
;-; /I~-;;Z/
i J es P. Liddy
cting Chief of Police
Hopkins Police Department
Council Report
December 7, 1999
Page 2
Primary Issues to Consider
. Will the agreement result in any cost to the City?
No. All costs associated with this agreement, including site analysis, installation,
maintenance and structural modifications, if any, are the responsibility of US West
Cellular.
. Is the radio tower, in its current condition, capable of supporting the additional
equipment?
us West is currently conducting an analysis of the tower structure. If structural
modifications are necessary to support the additional equipment, US West will bear
the cost for making the modifications.
. Will the US West equipment result in interference with the police/fire radio
transmissions?
Based on the type of equipment to be installed by US West, it is not anticipated that
there will be any problems with interference. In the event that this does occur, US
West will make changes to eliminate the interference or remove the equipment. The
City and/or the police/fire departments are not responsible or liable for any
interference to US West equipment or signal.
. Will the agreement result in any benefit to the City?
The installation of the US West equipment will be beneficial to the City and the
residents of Hopkins. Residents using US WEST Cellular service will see improved
performance and coverage. This will include 9-1-1 calls made on a cellular phone
that may now come directly into our PSAP resulting in improved response time to the
call.
The City will also collect a monthly lease fee. Initially, this fee will be $500 per
month with a 4% increase effective January 1 st of each year of the lease.
Alternatives
1. Approve the recommendation by staff to finalize the agreement.
2. Deny the recommendation and have US West search for an alternative site.
For Minnesota Only
SITE ill MIN263
OPTION AND SITE LEASE AGREEMENT
THIS OPTION AND SITE LEASE AGREEMENT (this "Agreement") is entered into
this day of , 1999 ("Date of Agreement") by and
between The City of Hopkins ("Lessor") whose address is 1010 First Street South. Hopkins,
Minnesota and U S WEST Wireless, L.L.c., a Delaware Limited Liability Company ("Lessee")
whose address is 1860 Lincoln, 14th Floor, Denver, Colorado 80295.
WHEREAS, Lessor is the owner of certain real property including building(s) as more
particularly described in Exhibit A attached hereto and made a part hereof by this reference
("Property"); and
WHEREAS, Lessee desires to obtain an option on the Property for the purpose of
occupying and installing its Communication Facilities as more specifically set forth below.
WHEREFORE, Lessor and Lessee agree as follows:
OPTION
1. Lessor, for and in consideration of Three Hundred Fifty Dollars($350.00) this
Agreement and mutual considerations, the receipt of which is hereby acknowledged, does hereby
grant and convey unto Lessee, its successors, assigns, and agents an Option to lease the Property
for the Permitted Use as set forth in paragraph four below.
2. Option. The option to lease Lessor's Property may be exercised by Lessee at any
time within the first 18 months of the Date of this Agreement ("Option Period") by providing
Lessor with written notice of Lessee's intent. Lessor agrees that Lessee may, at its sole
discretion, extend the Option Period by six additional months by providing Lessor with written
notice prior to the expiration of the original Option period and by paying Lessor, at the time
Lessee requests the extension, a sum of Three Hundred Fiftv Dollars ($350.00).
3. Due Diligence. During the Option Period and any option extension, Lessee, its
agents, engineers, or contractors shall have the right to enter upon Lessor's Property to inspect,
examine, sample and conduct all engineering tests or studies of the Site, as hereafter defined, to
apply for and obtain all licenses and permits required for the Lessee's Permitted Use from all
applicable governmental or regulatory entities, and otherwise do those things on the Site that, in
the opinion of Lessee, are necessary to determine the physical condition of the Site, Lessor's title
to the Site and the feasibility or suitability of the Site for Lessee's Permitted Use, all at Lessee's
expense. Lessee shall not be liable to Lessor or any third party on account of any pre-existing
defect or condition on or with respect to the Site, whether or not such defect or condition is
disclosed by Lessee's inspection, although Lessee shall be responsible for any damage, loss or
destruction to the Site as a result of the actions of its employees, representatives or agents during
the due diligence activities.
Lease 98 I 026
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LEASE
The lease provisions contained in paragraphs 4 - IS of this Agreement shall become
effective upon Lessee's exercise of its option pursuant to Paragraph 2 above ("Effective Date").
4. Permitted Use. The location on Lessor's Property which Lessee is occupying and
installing its facilities is and shall be referred to as the "Site", which is more particularly
described in Exhibit B attached hereto and made a part hereof by this reference.
(a) Lessee shall have the right, at its expense, to install, construct, reconstruct
and maintain on the Site communication facilities including, without limitation, radio and other
communication transmitting and receiving antennas, support mounts, cables, equipment,
equipment storage structures and other improvements relating thereto (collectively the
"Communication Facilities ") for the provision of wireless communications service. Lessee shall
have the right to modify, supplement, replace, upgrade or relocate the Communication Facilities
on the Property at any time during the term of the lease so long as said relocation, replacement or
upgrade is made for the purpose of improving the operation of its Communication Facilities.
(b) Lessee shall be entitled to reasonable access to the Site 24 hours a day,
seven days per week, and shall have all additional rights of ingress and egress to and from each
Site, provided however, except in the case of an emergency, Lessee shall notify Lessor in
advance of Lessee's proposed construction, maintenance or repair activities to be performed on
the Site in order to coordinate said activities with Lessor's operations.
(c) Lessee shall pay any incremental additional utility charges to the Site
incurred as a result of Lessee's Permitted Use. Lessee shall have the right, at its expense, to
install or improve utilities within or on the Property to service this Site.
5. Term. This Lease shall be for a term of five years ("Lease Term") from the
Effective Date. Lessee shall have a right to renew the Lease Term for four (4) additional terms of
five (5) years for each term (each being a "Renewal Term"). The Lease Term and each
subsequent Renewal Term will automatically renew unless Lessee notifies Lessor in
writing, of Lessee's intent not to renew on or before the expiration of its current Lease
Term or Renewal Term.
6. Rent. SEE ATTACHED ADDENDUM
(a) Each month during the Lease Term Lessee shall pay Five Hundred
Dollars ($500.00) ("Lease Payment") to Lessor as rent. Said rent shall be payable in advance to
Lessor on or before the first day of each calendar month. During each Renewal Term Lessee
shall pay rent as follows:
Renewal Term 1 - Year 6-10
Renewal Term 2 - Year 11-15
Renewal Term 3 - Year 16-20
Renewal Term 4 - Year 21-25
/month
/month
/month
/month
(b) Payment of rent shall be made payable to and sent to Lessor's address as
first set forth above.
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(c) Lessee shall pay, as additional rent, any increase in real property taxes
levied against the Site, which are directly attributable to Lessee's use and improvement of the
Site, and Lessor agrees to furnish proof of such increase to Lessee.
7. Interference.
(a) Lessee shall not use the Site in any way that interferes with the existing
use by: (i) Lessor or (ii) tenants or licensees of Lessor holding rights to such Site on the date of
this Agreement ("Existing Tenants").
(b) Lessor warrants to Lessee the use and quiet enjoyment of the Site. Lessor
agrees that it shall not use, nor shall it permit its tenants, lessees, employees, invitees or agents to
use, any portion of the Property in any way which would interfere with the operation of Lessee,
provided that continued use by Lessor or Existing Tenants in the same manner as existed at the
time the Lease was executed shall not constitute interference with Lessee's operations.
8. Environmental Matters.
(a) Lessee will be solely responsible for and will defend, indemnify and hold
Lessor, its agents, and employees harmless from and against any and all direct claims, costs, and
liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the
cleanup or restoration of the property associated with the Lessee's use of Hazardous Materials.
(b) Lessor will be solely responsible for and will defend, indemnify, and hold
Lessee, its agents, and employees harmless from and against any and all direct claims, costs, and
liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the
removal, cleanup, or restoration of the property with respect to Hazardous Materials from any
and all sources other than those Hazardous Materials introduced to the property by Lessee.
(c) Hazardous Materials" means asbestos or any hazardous substance, waste
or materials as defined in any federal, state, or local environmental or safety law or regulation
including, but not limited to, CERCLA.
(d) The obligations of this section eight shall survive the expiration or other
termination of this Agreement.
9. InsurancelIndemnificationlEminent Domain. Lessee shall maintain at its expense
commercial general liability insurance covering actions by Lessee providing for a limit of not less
than $1,000,000.00 single limits, bodily injury and/or property damage combined, for damages
arising out of bodily injuries to or death of all persons and for damages to or destruction of
property, including the loss of use thereof. Coverage shall include independent contractor's
protection, premises-operations, products/completed operations and contractual liability with
respect to the liability assumed by Lessee hereunder. Lessor and Lessee shall look solely to their
respective insurance carriers for loss due to any property damage which is covered by insurance
and neither party's insurance company shall be subrogated to a claim against the other party.
Each party shall indemnify and defend the other against loss from its negligent acts and the
negligent acts of its employees, agents, licensees, and invitees. The parties shall share in a
condemnation award in proportion to their interest in the Property taken.
10. Assignment and Subleasing.
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(a) Lessee may assign this agreement, in part or in whole, including its right to
renew to any third party, parent, subsidiary or affiliate of Lessee without Lessor's consent.
(b) Upon notification to Lessor of any assignment, Lessee shall be relieved of
all performance, liabilities and obligations under this Option and Site Lease Agreement.
(c) In the event Lessor elects to permit another communications user the right
to use any of Lessor's Property, Lessor agrees to notify Lessee thirty (30) days prior to the
issuance of such authority for the purpose of determining whether the third party
communications user will interfere with Lessee's use or intended use of the Site. Should Lessee
notify Lessor in writing that the third party communications user will interfere with Lessee's
operations, then Lessor agrees not to permit the third party communications user the right to use
the Site. Lessee's consent shall not be unreasonably withheld.
11. Termination. This Agreement may be terminated as follows:
(a) by Lessor if Lessee fails to cure a default for payment of amounts due
hereunder within thirty (30) days after Lessee's receipt of written notice of default from Lessor;
(b) by the non-defaulting party if the other party defaults (other than a default
described in Section 11(a) above) and fails to cure such default within sixty (60) days after
written notice of such default is received by the defaulting party from the non-defaulting party;
provided, however, that if such default is capable of being cured, the Lease may not be
terminated so long as the defaulting party commences appropriate curative action within such
sixty (60) day period and thereafter diligently prosecutes such cure to completion as promptly as
possible;
(c) by Lessee upon sixty (60) days prior written notice, in which case Lessee
shall have no further obligations to Lessor.
(d) by Lessee upon thirty (30) days written notice, if it is unable to obtain local
building and zoning permits or FCC license to operate in the service area.
12. Successors and Assigns. This Agreement shall run with the Property and shall be
binding upon and inure to the benefit of the parties, their respective successors, personal
representatives and assigns.
13. Representation and Warranties. Each party covenants and warrants to the other
that (i) it has full right, power and authority to execute this Agreement and has the power to
grant all rights hereunder; (ii) its execution and performance of this Agreement will not violate
any laws, ordinances, covenants, or the provisions of any mortgage, lease or other agreement
binding on said party; and (iii) the execution and delivery of this Agreement, and the
performance of its obligations hereunder, have been duly authorized by all necessary personnel or
corporate officers and do not violate any provisions of law or the party's certificate of
incorporation or bylaws or any other arrangement, provision of law or court order or decree.
14. Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed given if personally delivered, or mailed by certified mail,
return receipt requested, to the following addresses:
Lease 981026
For Minnesota Only
If to Lessor:
CITY OF HOPKINS
1010 First Street South
Hopkins. MN 55343
with a copy to:
If to Lessee, to:
U S WEST Wireless, L.L.C.
c/o U S WEST Communications Group Real Estate Services
8200 East Belleview, Suite 500
Englewood, Colorado 80111
AUn: PSL Manager/Wireless
with a copy to:
U S WEST Wireless, L.L.C.
426 North Fairview Avenue
St. Paul, MN 55104
Attn: Regional Real Estate Manager
15. Miscellaneous.
(a) This Option and Site Lease Agreement shall constitute the entire
agreement and understanding of the parties with respect to the Property that is the subject matter
thereof and supersedes all offers, negotiations and other agreements with respect thereto. There
are,no representations or understandings of any kind not set forth herein. Any amendment to this
Agreement must be in writing and executed by both parties.
(b) Any claim, controversy or dispute arising out of this Agreement shall be
settled by arbitration in accordance with the applicable rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitration shall be conducted in the county where the property
is located. There shall be no discovery other than the exchange of information which is provided
to the arbitrator by the parties. The arbitrator shall have the authority only to award
compensatory damages and shall not have authority to award punitive damages or other non-
Lease 981026
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compensatory damages; the parties hereby waive all rights to and claims for monetary awards
other than compensatory damages.
(c) Either party hereto that is represented in this transaction by a broker, agent
or commission salesperson (a "Representative") shall be fully and exclusively responsible for the
payment of any fee, commission or other compensation owing to such Representative, and shall
indemnify and hold the other party harmless from and against any claim to a fee, commission or
other compensation asserted by such Representative, including reasonable attorneys' fees and
costs incurred in defending such claim.
(d) 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.
(e) By executing this Agreement, the parties are not establishing any joint
undertaking, joint venture or partnership. Each party shall be deemed an independent contractor
and shall act solely for its own account.
(f) This Agreement shall be governed by the law of the state in which the
Property is located.
(g) Landlord acknowledges that U S West Wireless, L.L.c., as a licensee
under the rules and regulations of the Federal Communications Commission, is subject to certain
federal requirements. Landlord hereby agrees to cooperate in good faith with U S West Wireless,
L.L.C., in its efforts to comply with applicable federal requirements.
The parties have entered into this Agreement as of the date first stated above.
SIGNA TURES:
LESSOR: City of Hopkins
BY:
ITS:
Fed Tax ID 41-6005-247
LESSEE:
BY:
ITS:
U S WEST Wireless, L.L.C.
Lease 981026
STATE OF COLORADO
)
) ss.
COUNTY OF
)
The foregoing instrument was acknowledged
, 19_ by
(type of authority) of US WEST Wireless, L.L.C.,
on behalf of the limited liability company.
WITNESS my hand and official seal.
My commission expires:
Notary Public for Minnesota
Lease 981026
For Minnesota Only
before me on this _ day of
as
a Delaware limited liability company,
For Minnesota Only
ADDENDUM TO OPTION AND SITE LEASE AGREEMENT
Site: MIN263
The attached Option and Site Lease Agreement (the Agreement) made and entered into
this day of , 1999, by and The City of Hopkins
("Lessor") and U S WEST Wireless, L.L. c., a Delaware limited liability company ("Lessee") of
which this Addendum (the Addendum)is made part, is hereby amended and supplemented as
follows:
Paragraph 4. Permitted Use The following paragraphs (d & e) are added to the Lease.
(d) Lessee shall give the Lessor at least 30 days notice of the Lessee's intent to install
additional equipment or structures as provided for in Sub-paragraph 4 (a) of this Lease.
(e) If Lessee desires to install equipment or structures not included in the original lease
agreement, as detailed in the site plan, the Lessor, at its option, may require the Lessee to
pay an additional rental fee. Such additional rental fee to be negotiated between Lessee
and Lessor.
Paragraph 6. Rent. The following sentence shall be added to paragraph 6 of the Lease
Agreement:
(d) Rent shall be increased each year on January 1, beginning January 1,2001, by four
percent (4%) of the previous rent amount.
Paragraph 10 Assignment and Subleasing Sub-paragraphs (a & b) are hereby deleted
in there entirety and replaced with the following:
(a) Upon Lessor's written consent, which shall not be unreasonably withheld, Lessee may
sublet and assign this Lease, in or whole, including its right to renew, to any third party,
parent, subsidiary or affiliate of Lessee which is licensed by the Federal Communications
Commission.
(b) Upon Lessor's consent of any assignment, Lessee shall be relieved of all performance,
liabilities and obligations under this Option and Site Lease Agreement.
STRUCTURAL REPORT
Tenant, at tenants cost, shall provide landlord with a structural report from a Certified
Structural Engineer indicating whether the Communications Tower is able to structurally
support Tenant's additional antenna facility without prejudice to the landlords primary
use of the of the Communications Tower as a Communications Tower.
INTERFERENCE
The Lessor may be allowed to place an antenna(s) or other communications facilities, for
Lessor's intended use, on the Communications Tower regardless of potential or actual
interference with Lessees use provided, however that Lessee be notified 60 days in
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advance of placement of said equipment on the Tower and that Lessor and Lessee work to
their best efforts in providing an alternate space for Lessee on the Tower. If Lessee's use
of the property is materially affected, Lessee may terminate this lease by written notice
without penalty.
LESSOR: City of Hopkins
BY:
ITS:
Fed Tax ID 41-6005-247
LESSEE: U S WEST WireJess, L.L.C.
BY:
ITS:
Lease 981026
For Minnesota Only
Site ID#: MIN263
EXHIBIT "A"
TO
SITE AGREEMENT
SKETCH AND DESCRIPTION OF PROPERTY:
(Attach Drawings Here) Attached.
LEGAL DESCRIPTION OF OWNER'S PROPERTY:
Legal Description:
Lots 1 thru 6 inclusive, Lots 13 thru 18 inclusive, Ih of vacated
alley and adjacent street Block 11 West Minneapolis
Property Identification Number:
24-117-22-34-0129
Common Address:
1010 South 1st Street, Hopkins, MN 55343
It is agreed by owner and lessee that the precise legal description for the Owner's
Property will be corrected, if necessary, and that the correct legal description may be placed on
this Exhibit "A".
Lease 981026