CR 96-191 Approve Site Lease Agreement - Moline TowerNovember 21, 1996
Proposed Action.
Staff recommends adoption of the following motion: Move that Council
authorize the Mayor and City Manager to enter into a site lease agreement
with American Portable Telecom (APT) to allow installation of antennas on
the Moline water tower, 10421 Excelsior Boulevard.
Overview.
This is the first request to the City for an antenna installation supporting the
new advanced cellular phone system. The new cellular technology, called
personal communication service or PCS, is digital -based and provides faster,
clearer, more secure and varied types of wireless communication. It also
requires more closely spaced antennas than the early analog- technology
cellular. Many of these antennas are already installed Metro -wide. This site
lease agreement is modeled after the League of Minnesota Cities suggested
site lease agreement and has been reviewed and approved by the City
Attorney.
Primary Issues to Consider.
• Zoning Ordinance requirements/limitations
• Lease Conditions
• Maintenance and access
• Liability
Supporting Information
• Analysis of Issues
• Antenna installation plans
• PCS general information
• Lea . e Agreem
APPROVE SITE LEASE AGREEMENT
MOLINE TOWER ANTENNA
Steven J. Stadler, Public Works Director
Council Report 96 -191
Council Report 96 -191
Page 2
Analysis of Issues
• Zoning Ordinance requirements/limitations
The siting and construction of the antenna facilities comply with our Zoning
ordinance regulating antenna installations. Specifically, our ordinance
(560.03) prohibits: 1) antennas from extending more than 20 feet above the
structure; 2) more than two antenna banks /structure; and 3) accessory
buildings or equipment cabinets closer than 3 feet from the property line.
• Lease Conditions
The lease agreement requires APT to pay $2,000 upon execution of the
agreement plus $10,800 per year annual rent with provisions for annual
increases. The average Metro area rental fee varies at around $12,000 /year.
The proposed $10,800 fee is for 6 panel antennas. The annual rental fee
would increase at $1,800 per antenna if APT requested to install additional
antennas. For comparison purposes, The City of Minnetonka charges US
West $11,500 per year for 12 panels on their Ridgedale water tower,
The initial term of the lease agreement is 5 years. The tenant (APT) has the
right to extend the lease for three additional 5 year renewal periods. The
lease can be terminated by the City if the tenant defaults on any terms of the
agreement, if the leased area is redeveloped, if the structure can no longer
safely accommodate the antennas, or if the tenant fails to comply with current
applicable ordinances.
• Maintenance and access
The tenant is required to maintain the antennas and appurtenances in a good
state of repair, at least equal to the standard of the City's facilities. When the
tower is repainted, the tenant is required to pay for painting of tenant's
improvements to match.
Page 3
The tenant is allowed access only with City approval. The tenant is required
to reimburse the City for any expenses related to providing access at other
than normal working hours.
• Liability
The tenant must show evidence of general liability insurance of not less than
$1,000,000 naming the City as additional insured.
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LOT LINE
EXISTING WATER TOWER
EXISTING CONCRETE APRON
• i
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EQUIPMENT COMPOUND
LOCATION 'A"
SITE PLAN
EXISTING BUILDING
SCALE: 1" = 20•_0.
.
. LEJ
LOT LINE
EXISTING WATER TOWER
EXISTING CONCRETE APRON
ix EQUIPMENT COMPOUND
LOCATION B "
SITE PLAN
EXISTING BUILDING
i
SCALE: 1" = 20' -0'
ANTENNAS 81 & 82
FACING 120'
EAST ELEVATION
ANTENNA A2
FACING 0'
EXISTING 18' DIA:
RAILING
SCALE: 1" = 10' -0'
ANTENNA
N -CONCRETE APRON
111 :,..
o
n
—
- N
C
0
A
C1
PANEL ANTENNA
2" SCHEDULE 40 PIPE
X 8' -0"
DECIBAL CLAMP (PART
NO 60534)
1/2" THREADED ROD
ANTENNA MOUNT
DECIBAL CLAMP (PART NO 80534)
1/2" THREADED ROD
PANEL ANTENNA
2" SCHEDULE 40 PIPE X 8' -0"
EXISTING RAILING
1/2" JUMPER
SECTION A
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FREDRIKSON & BYRON, P.A.
Attorneys At Law
Adrian E. Herbst
Theresa M. Harris
We have all heard of Personal Communications Service ( "PCS ") and the tremendous
expenditure made by various operators to the Federal Communications Commission for the right
to receive licensed Spectrum. To date, the auctioned -off radio frequency Spectrum has cost the
industry in excess of $10 billion. We know that these business operators are serious and will
intend to move ahead quite rapidly to deploy their systems throughout the country.
The purpose of this article is to briefly describe what PCS is, some of the experiences
of municipal governments to date, and how local officials can plan for this new emerging
technology.
WHAT IS PCS?
PCS is a new wireless communication service which will make wireless voice and data
services faster, higher quality and more affordable. PCS operates on a digital signal. As a
consequence, more consumers can utilize this form of service and at potentially less cost. The
downside is that the frequency of cell sites may present problems for the municipalities.
Traditional cellular telephone cell sites are spaced approximately seven miles apart With
a PCS system, the cell sites must be located approximately two blocks apart (approximately
1,500 feet). Further, each of these cell sites must be connected one to another via either a fiber
optic cable or microwave line of site transmission path. Additionally, connection must be made
542297 - May 29, 1996 - Page 1
PCS IS COMING TO TOWN
FREDRIKSON 8: BYRON, P.A.
Attorneys At Law,
to a central office, the local exchange system, and long - distance carrier. Cell sites which utilize
microwave technology may need to be located 100 feet or more above the ground.
Municipalities are being faced with requests from PCS operators to use public property,
public buildings, or other properties within the municipality to locate antennas or to locate cell
sites and microwave dishes.
WHAT ARE MUNICIPALITIES DOING?
Local govemments are responding to multiple requests for the use of the public
rights -of -way. Local govemments, however, are affected by the Telecommunications Act
provisions, which limit their authority to zone the location and placement of these facilities.
Some of the solutions local governments are currently utilizing include at least the
following:
1. A moratorium on development of PCS systems in their community. In a recent
case in Medina, Washington, the court upheld the right of a local unit of
government to impose a six -month moratorium to plan for the impact of PCS
development. This cause is especially important because many municipalities
have felt rushed to enter into some form of agreement and in many cases have
believed that they do not have any rights with regard to PCS systems. It is
important approach to organized telecommunications planning that the local
govemment has sufficient time to evaluate the various options that may be
considered.
342297 - May 29, 1996 - Page 2
FREDRIKSON & BYRON, P.A.
Attorneys At Law
2. Co-location of facilities. Municipalities should develop policies and standards for
the review of PCS applications. As a part of those policies, municipalities should
include co- location as a first priority to the location facilities. For example, the
addition of a cell site to a monopole lighting structure along the highway for
location of a cell site and dish, the top of a water tower, on top of buildings or
other structures that are sufficient height may take priority over new structures
being built. It is important, as part of telecommunications planning, to examine
sites suitable for PCS systems within the municipal boundaries to ensure that the
city is prepared to address applications and to encourage the PCS operator to
utilize the existing facilities. Then when an application is made the local
government can review the "grid" plan for the PCS system, and ensure that to the
greatest extent possible existing facilities are utilized and the least amount of
adverse impact.
3. Use of facilities owned by a local unit of government and /or location on public
property. Local units of government are exploring ownership of their own
facilities and leasing space for utilization by PCS operators. For example, in the
case of one municipality we work with, locations for PCS, co-location may not
fulfill the needs of the PCS operator. Because additional structures are necessary
for the system, properties have been identified and examining the idea of a sale
of antennas lease back arrangement in which the PCS operator will commit to
build the structure, turn the ownership over to the city, and allow the PCS
542297 - May 29, 1996 - Page 3
FREDRIKSON & BYRON, PA,
Attorneys At Law
operator and others to lelce back space to utilize the antenna structure. This
permits a city to retain control of the facilities and to ensure that there will be the
least amount of additional structures built within the municipality. It gives the
PCS operator use rights at a reduced cost.
4. Aesthetic considerations. Numerous aesthetic considerations are important to
consider when allowing new structures. Municipalities should review the color
of the poles and antennas, screening, distance, and other factors to prevent
intrusion to the greatest degree possible. It is also important to ensure that there
will not be interference to public safety, radio frequency signals, or police and
fire department radio towers.
A recent antenna design has been presented that is in the form of a
Christmas tree. It utilizes a pole which companies can plug -in "branches" and
create the appearance of a tree.
5. Rental and other ea men . Compensation for use of right -of -way and those
payments for space on public building and structures is considerably varied.
Further, some local governments would rather structure an in -kind payment, i.e.,
discounted rates for residents. It would be well for MACTA to collect
information and ideas to help municipalities in planning.
CONCLUSION
In conclusion, local government must understand that it should not rush to enter into
agreements with PCS operators simply to gain revenues for their communities through lease
542297 - May 29, 1996 - Page 4
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FREDRIKSON & BYRON, P.A.
Attorneys At Law
agreements or other means. There are numerous considerations that are very important for local
government to evaluate before making any sort of a decision. In the end, what is most important
is to determine what is most important for your municipality. Is it additional income through
lease payments? Is it to reduce the impact or unsightliness on residences, businesses, and others
in the community from new antennas and towers? Is it to negotiate in -land types of benefits that
are important for the community in exchange for compensation for use of right -of -way or public
property?
The foregoing are just some of the issues that need to be evaluated. It is our
recommendation that you take the time to consider this and put in place a plan that best meets
the needs of your community or municipality.
542297 - May 29, 1996 - Page 5
2. Rent.
SITE LEASE AGREEMENT
Site Number: AIP -012
Site Name: Hopkins
This Site Lease Agreement ("Lease"), made this _ day of
1996 between the CITY OF HOPKINS (`Landlord "), and APT Minneapolis, Inc., a
Delaware Corporation organized and existing under the laws of Delaware ("Tenant").
For good and valuable consideration, the parties agree as follows:
1. Leased Premises. For the sum of Two Thousand Dollars ($2,000) to be paid to
Landlord by Tenant upon execution of the Agreement, and other good and valuable
consideration, subject to the terms and conditions of this Lease Landlord hereby leases to
Tenant and Tenant leases from Landlord a portion of Landlord's property, located at 916
County Road 3, Hopkins, MN 55343, County of Hennepin, State of Minnesota, legally
described in Exhibit A attached hereto, subject to any and all existing easements, and a
portion of the City of Hopkins Water Tower or other structures ("Structure"), as more
particularly shown in Exhibit B attached hereto, on which directional antennas,
connecting cables and appurtenances will be attached and located, the exact location of
each to be reasonably approved by Landlord's Director of Public Works, together with
appurtenant easements and access rights ( "Leased Premises ").
a) Amount. Adjustments. As consideration for this Lease, Tenant shall pay Landlord
as annual rent in the amount of Ten Thousand Eight Hundred ($10,800) for the initial
year, which shall be increased each year on January 1, by the greater of: (a) three percent
(3 %) of the previous year's annualized rental, or (b) by an amount equal to the increase in
the Consumer Price Index (`CPI "). The CPI shall mean the "Consumer Price Index - for
All Urban Consumers, All Cities, All Items ( 1984= 100)" as published by the United
States Department of Labor Statistics, or if such index shall be discontinued, the
successor index, or if there shall be no successor index, such comparable index as
mutually agreed upon by the parties. To determine the annual rental increase to be paid
by Tenant under a CPI adjuster, the annualized rental for the previous year shall be
multiplied by a percentage figure, computed from a fraction, the numerator of which shall
be the CPI for the third quarter of the preceding year and the denominator of which shall
be the CPI for the corresponding quarter of one year earlier. Such fraction shall be
converted to a percentage equivalent. The resulting percentage figure shall be multiplied
by the previous year's rent (annualized for the first year, see Paragraph 4 below).
b) Time of Payment Taxes. Landlord shall communicate all rental increases to the
Tenant in writing by the preceding December 1 of each year. The annual rental shall be
paid in four quarterly installments commencing on the Effective Date and on the first day
of the month of each quarter thereafter provided that for the first quarter of the first year,
the rental shall be prorated through the end of the first quarter and shall be paid to
Landlord in full within fifteen (15) business days of the date the Lease is executed. In
addition to the annual rents, Tenant agrees to timely pay its prorated share of any taxes or
payment in lieu of taxes which are directly attributable to Tenant's improvements
required as a result of this Lease.
3. Governmental Approval ContinEencv.
a) Tenant Application. Tenant's right to use the Leased Premises is expressly made
contingent upon its obtaining all the certificates, permits, zoning and other approvals that
may be required by any federal, state or local authority. This shall include the
engineering study on the Structure as specified in Subparagraph 3(b) to be conducted at
Tenant's expense. Landlord shall cooperate with Tenant in its efforts to obtain and retain
such approvals and shall take no action which would adversely affect the status of the
Leased Premises with respect to the Tenant's proposed use thereof.
b) Interference Study. Before obtaining a building permit, 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
will not interfere with any existing communications facilities and such cost not to exceed
$300.00 (ii) an engineering study showing that the Structure is able to support the
Tenant's Antenna Facilities as defined in Subparagraph 5(b), without prejudice to the
City's use of the Structure such cost not to exceed $3000.00. If the study finds that there
is a potential for interference that cannot be reasonably remedied or that the Structure is
unable to safely bear the weight of the equipment, Landlord may terminate this Lease
immediately and refund the initial rental payment to Tenant.
c) Non- approval. In the event that any application necessary under Subparagraph 3(a)
above is finally rejected or any certificate, permit, license, or approval issued to Tenant is
canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental
authority so that Tenant, in its sole discretion. will be unable to use the Leased Premises
for its intended purposes, Tenant shall have the right to terminate this Lease and be
reimbursed for the rental payment if made pursuant to the Subparagraph 2(b) above.
Notice of Tenant's exercise of its right to terminate shall be given to Landlord in writing
by certified mail, return receipt requested, and shall be effective upon receipt of such
notice by Landlord as evidenced by the return receipt. Except as required under
Subparagraph 12 (d) below, upon such termination, this Lease shall become null and void
and the parties shall have no further obligations to each other.
4. Term and Renewals. The "Initial Term" of this Lease shall commence on the
date in the first paragraph of this Lease ("Effective Date ") and end on December 31 of the
fifth calendar year of the Lease. Subject to the terms and conditions of this Lease, tenant
shall have the right to extend this Lease for three (3) additional five (5) year renewal
periods ("Renewal Term ") commencing on January 1 following the expiration date of the
Initial Term or of any subsequent Renewal Term.
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This Lease shall be automatically renewed for each successive renewal Term unless
Tenant sends written notice of non - renewal to the other no later than ninety (90) days
prior to the expiration of the Initial term or any Renewal Term, such notice provided in
accordance with Paragraph 20 of this Lease.
5. Tenant's Use.
a) Governmental Users. A governmental unit may be allowed to place antennas or
other communications facilities on the Tower regardless of potential or actual interference
with Tenant's use; however, if Tenant's use of the Property is materially affected, Tenant
may terminate the Lease. A governmental unit is to include Public Safety agencies,
including law enforcement, fire, and ambulance services.
b) Purposes. Tenant shall use the Leased Premises only for the purpose of installing,
maintaining, and operating a Landlord - approved communications antenna facility,
equipment, cabinets and uses incidental thereto for providing radio and wireless
telecommunication services which Tenant is legally authorized to provide to the public.
This use shall be non - exclusive and Landlord specifically reserves the right to allow the
Leased Premises to be used by other parties and to make additions, deletions or
modifications to its own facilities on the Leased Premises. Tenant's communications
antenna facility shall consist of antennas, cables and appurtenances connected to an
accessory building or cabinet located on the Leased Premises ( "Antenna Facilities ").
Tenant shall have the right to determine the location of the antenna facility, subject to the
Landlord's approval. Tenant shall comply with all applicable ordinances, statutes and
regulations of local, state and federal governmental agencies. The approval of Landlord
shall not be unreasonably withheld.
c) Construction. Tenant may erect and operate an antenna array in accordance with its
submitted application attached as Exhibit B. If Tenant seeks to increase the number of
antennas, it must first pay for an evaluation carried out by a qualified professional,
retained by Landlord demonstrating that (i) each additional antenna will not interfere with
existing antennas or with proposed antennas and that (ii) any Structure can structurally
support the additional antennas. The cost for antenna evaluation shall not exceed $300.00
and the cost for structural evaluation shall not exceed $3000.00. The evaluation cost
must be paid by the Tenant within 30 days after receiving written notice of the cost.
Landlord must consent to installation of additional antennas, such consent will not be
unreasonably withheld or delayed. If Landlord consents, the rent for the additional
antenna(s) will be proportionally adjusted based on the original number of antennas and
original rent.
d) Operation. Tenant shall have the right, at its sole cost and expense, to operate and
maintain the Antenna Facilities on the Leased Premises in accordance with all applicable
FCC rules and regulations. Tenant's installation of all Antenna Facilities shall be done
according to plans approved by Landlord, which approval shall not be unreasonably
withheld or delayed. Any damage done by Tenant, its employees or agents to the Leased
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Premises or other Landlord property, including the Structure, during installation or during
operations, shall be repaired at Tenant's expense within 30 days after notification of
damage. The Antenna Facilities shall remain the exclusive property of the Tenant, unless
otherwise provided in this Lease.
e) Maintenance, Improvement Expenses. All modifications to the Leased Premises and
all improvements made for Tenant's expense and such improvements, including antenna,
facilities and equipment, shall be maintained in a good state of repair, at least equal to the
standard of maintenance of the Landlord's facilities on or adjacent to the Leased
Premises, and secured by Tenant. If Tenant's Antenna Facilities are mounted on the
Structure they shall, at all times, be painted, at Tenant's expense, the same color as the
structure.
f) Replacements. Before the Tenant may update or replace the Antenna Facilities,
tenant must notify and provide a detailed proposal to Landlord. Tenant shall submit to
Landlord a detailed proposal for any such replacement facilities and any other
information reasonably requested by Landlord of such requested update or replacement,
including but not limited to a technical study, carried out at Tenant's expense. Landlord
may not unreasonably withhold approval.
g) Drawings. Unless duplicative of previous specifications or drawings submitted to
Landlord, Tenant shall provide Landlord with as -built drawings of the equipment and
improvements installed on the Leased Premises, which show the actual location of all
Antenna Facilities. Said drawings shall be accompanied by a complete and detailed
inventory of all equipment, personal property, and Antenna Facilities actually placed on
the Leased Premises
h) No Interference. Tenant shall, at its own expense, maintain any equipment on or
attached to the Leased Premises in a safe condition, in good repair and in a manner
suitable to Landlord so as not to conflict with the use of' the surrounding premises by
Landlord Tenant shall not unreasonably interfere with the operations of any prior tenant
using the Structure and shall not interfere with the working use of the water storage
facilities thereon or to be placed thereon by Landlord.
i) Access. Tenant shall have access to the Leased Premises during the term of this Lease
in order to install, operate, repair and maintain its Antenna Facilities. Tenant shall have
access to the Leased Premises only with the approval of the Landlord Tenant shall
request access to the Leased Premises from the City of Hopkins Public Works
Department, during normal working hours. In the event it is necessary for the Tenant to
have access to the Leased Premises other than during normal working hours, the Tenant
shall request access from the City of Hopkins Police Dispatch Department. Tenant shall
reimburse Landlord for expenses directly related to access provided Tenant at times other
than normal working hours of Landlord.
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j) Payment of Utilities. Tenant shall separately meter charges for the consumption of
electricity and other utilities associated with its use of the Leased Premises and shall
promptly pay all costs associated therewith.
6. Emergency Facilities. In the event of a natural or man made disaster, in order to
protect the health, welfare, and safety of the community, Tenant may erect additional
Antenna Facilities and install additional equipment on a temporary basis on the Leased
Premises to assure continuation of service. Such temporary operation shall not exceed
ninety (90) days unless Tenant obtains written approval from the Landlord.
7. Additional Maintenance Expenses. Upon notice from Landlord, Tenant shall
promptly pay to Landlord all additional Landlord expenses incurred in maintaining the
Leased Premises, including painting or other maintenance of the Structure, that are caused
by Tenant's occupancy of the Leased premises.
8. Defense and Indemnification.
a) General. Tenant and Landlord each indemnify and hold harmless the other and their
respective elected officials, officers, employees, agents, and representatives, from and
against any and all claims, costs, losses, expenses, demands, actions or causes of actions,
including reasonable attorneys' fees and other costs and expenses of litigation arising out
of the use and occupancy of the Leased Premises by Tenant, which may be asserted
against or incurred by either party or for which either party may be liable in the
performance of this Lease, except those to the extent that the same arise from the
negligence, willful misconduct, or other fault of either party. Tenant shall defend all
claims arising out of the installation, operation, use, maintenance, repair, removal, or
presence of Tenant's Antenna Facilities, equipment and related facilities on the Leased
Premises.
b) Hazardous Materials. Without limiting the scope of Subparagraph 8(a) above,
Tenant will be solely responsible and will defend, indemnify and hold Landlord. its
agents, and employees harmless from and against any and all claims, reasonable costs, out
of or in connection with the cleanup or restoration of the Leased Premises associated with
the Tenant's use of Hazardous Materials. For purposes of this Lease, "Hazardous
Materials" shall be interpreted broadly and specifically includes, without limitation,
asbestos, fuel, batteries or any hazardous substance, waste, or materials as defined in any
federal, state, or local environmental or safety law or regulations including, but not
limited to, CERCLA. Landlord understands that such materials are used in the ordinary
course of Tenant's business, such as batteries, in accordance with all applicable laws and
regulations. Landlord represents that Landlord has no knowledge of any substance or
chemical waste on the Landlord's property that is identified as hazardous, toxic or
dangerous in an applicable federal, state or local law or regulation.
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c) Tenant's Warranty. Tenant represents and warrants that its use of the Leased Premises
will not generate and Tenant will not store or dispose of on the Leased Premises, nor
transport to or over the Leased Premises, any Hazardous Materials, unless Tenant
specifically informs Landlord thereof in writing twenty-four hours prior to such storage,
disposal or transport, or otherwise as soon as Tenant becomes aware of the existence of
Hazardous Materials on the Leased Premises. Landlord understands that such materials
used in the ordinary course of Tenant's business, such as batteries, will be used in
accordance with all applicable laws and regulations. The obligations of this Paragraph 8
shall survive the expiration or other termination of this Lease.
9) Insurance.
a) Workers' Compensation. The Tenant must maintain Workers' Compensation
insurance in compliance with all applicable statutes. The policy shall also provide
Employer's Liability coverage with limits of not less than $500,000 Bodily Injury each
accident, $500,000 Bodily Injury by disease, policy limit, and $500,000 Bodily Injury by
disease, each employee.
b) General Liability. The Tenant must maintain an occurrence form commercial
general liability coverage. Such coverage shall include, but not be limited to, bodily
injury, Property damage -- broad form, and personal injury, for the hazards of
Premises /Operation, broad form contractual, independent contractors, and
products /completed operations.
The Tenant must maintain aforementioned commercial general liability coverage with
limits of liability not less than $1,000,000 each occurrence; $1,000,000 personal and
advertising injury; $1,000,000 general aggregate, and $1,000,000 products and
completed operations aggregate. These limits may be satisfied by the commercial general
liability coverage or in combination with an umbrella or excess liability policy, provided
coverage afforded by the umbrella or excess policy are no less than the underlying
commercial general liability coverages and hazardous materials.
c) Tenant Property Insurance. The Tenant and Landlord must keep in force for the
duration of the Lease a policy covering damages to its property at the Leased Premises.
The amount of coverage shall be sufficient to replace the damaged property, loss of use
and comply with any ordinance or law requirements.
d) Adjustment to Insurance Coverage Limits. The coverage limits set forth herein
may be increased at the time of any Renewal Term by the Consumer Price Index as
calculated in Paragraph 2(a).
e) Additional Insured - Certificate of Insurance. The Tenant shall provide, prior to
tenancy, evidence of the required insurance in the form of a Certificate of Insurance
issued by a company (rated A+ or better), licensed to do business in the state of
Minnesota, which includes all coverages required in this Paragraph 10. Tenant will name
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the Landlord as an Additional Insured on the General Liability Policy. The Certificate(s)
shall also provide that the coverage may not be canceled or non - renewed without thirty
(30) days prior written notice to the Landlord.
10. Damage or Destruction. If the Leased Premises is destroyed or damaged,
so as, in Tenant's judgment, to hinder its effective use of the Antenna Facilities, Tenant
may elect to terminate this Lease upon 30 days written notice to Landlord. In the event
Tenant elects to terminate the Lease, Tenant shall be entitled to reimbursement of prepaid
rent covering the period subsequent to the date of damage to or destruction of the Leased
Premises.
11. Lease Termination.
a) Events of Termination. Except as otherwise provided herein, this Lease may be
terminated by either party upon sixty (60) days notice to the other party upon the
occurrence of any one of the following events:
i) by either party upon a default of any covenant or term hereof by the other
party, which default is not cured within sixty (60) days of receipt of written
notice of default to the other party (without, however, limiting any other rights
of the parties pursuant to any other provisions hereof);
ii) by Tenant for cause if it is unable to obtain or maintain any license, permit or
other governmental approval necessary for the construction and /or operation
of the Antenna Facilities or Tenant's business;
iii) by Tenant for cause if the Leased Premises is or becomes unacceptable for
technological reasons under the Tenant's Antenna Facilities, design or
engineering specifications or the communications systems to which the
Antenna Facilities belong;
iv) by Landlord, if its Council decides, for any reason, to redevelop the Leased
Premises and /or discontinue use of the Structure for all purposes;
v) by Landlord if an independent structural engineer determines that the Structure
is structurally unsound, including, but not limited to, consideration of age of
the Structure, damage or destruction of all or part of the Structure on the
Leased Premises from any source, or factors relating to condition of the
Leased Premises;
vi) by Landlord if it determines that Tenant has failed to comply with current
applicable ordinances or state or federal law, or any conditions attached to
government approvals granted thereunder.
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(b) Notice of Termination. The parties shall give notice of termination in writing by
certified mail, return receipt requested. Such notice shall be effective upon receipt as
evidenced by the return receipt. All rentals paid for the Lease prior to said termination
date shall be retained by Landlord.
c) Tenant's Liability for Early Termination. If Tenant terminates this Lease other
than of right as provided in this Lease, Tenant shall pay to Landlord as liquidated
damages for early termination, 120% of the annual rent for the year in which Tenant
terminates, unless Tenant terminates during the last year of Term under Paragraph 4 and
Tenant has paid the annual rental that year.
d) Site Restoration. In the event that this Lease is terminated or not renewed, Tenant
shall have sixty (60) days from termination or expiration date to remove its Antenna
Facilities, and related equipment from the Leased Premises, repair the site and restore the
surface of the Structure to its original condition, normal wear, tear and casualty excepted.
In the event that Tenant's Antenna Facilities, and related equipment are not removed to
the reasonable satisfaction of the Landlord, they shall be deemed abandoned and become
the property of the Landlord and Tenant shall have no further rights thereto. Tenant has
notified the Landlord that the following entities have an interest in the Antenna Facilities
and related equipment because of financing arrangements (to be named later):
If Landlord removes the Antenna Facilities or related equipment, Landlord must give
written notice to the above entities at the addresses provided, informing them that
Antenna Facilities or related property have been removed and will be deemed abandoned
if not claimed and the storage fees and other reasonable costs paid within thirty (30) days.
12. Limitation of Landlord's Liability. If Landlord terminates this Lease
other than as of right as provided in this Lease, or Landlord causes interruption of the
business of Tenant or for any other Landlord breach of this Lease, Landlord's liability for
damages to Tenant shall be limited to the actual and direct costs of equipment removal,
relocation or repair and shall specifically exclude any recovery for value of the business
of Tenant as a going concern, future expectation of profits, loss of business or profit or
related damages to Tenant.
13. Temporary Interruptions of Service. If Landlord determines that
continued operation of the Antenna Facilities would cause or contribute to an immediate
threat to public health and /or safety (except for any issues associated with human
exposure to radio frequency omissions, which is regulated by the federal government),
Landlord may order Tenant to discontinue its operation. Tenant shall immediately
comply with such an order. Service shall be discontinued only for the period that the
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immediate threat exists If Landlord does not give prior notice to Tenant, Landlord shall
notify Tenant as soon as possible after its action and give its reason for taking the action.
Landlord shall not be liable to Tenant or any other party for any interruption in Tenant's
service or interference with Tenant's operation of its Antenna Facilities, except as may be
caused by the willful negligence or misconduct of the Landlord, its employees or agents.
If the discontinuance extends for a period greater than three (3) days, either consecutively
or cumulatively, Tenant shall have the right to terminate this Lease within its sole
discretion for cause and without payment of the early termination fee.
14. Tenant Interference.
a) With Structure. Tenant shall not interfere with Landlord's use of the Structure
and agrees to cease all such actions which unreasonably and materially interfere with
Landlord's use thereof no later than three (3) business days after receipt of written notice
of the interference from Landlord In the event that Tenant's cessation of action is
material to Tenant's use of the Leased Premises and such cessation frustrates Tenant's use
of the Leased Premises, within Tenant's sole discretion, Tenant shall have the immediate
right to terminate this Lease.
b) With Pre - Existing Users. If Tenant's Antenna Facilities cause impermissible
interference with pre - existing tenants, Tenant shall take all measures necessary to correct
and eliminate the interference. If the interference cannot be eliminated within forty -eight
(48) hours after receiving Landlord's written notice of the interference, Tenant shall
immediately cease operating its Antenna Facilities and shall not reactivate operation,
except intermittent operation for the purpose of testing, until the interference has been
eliminated. If the interference cannot be eliminated within thirty (30) days after Tenant
received Landlord's written notice, Landlord may at its option terminate this Lease
immediately without imposition of a termination fee upon Tenant.
c) Interference Study - New Occupants. Upon written notice by Landlord that it has a
bona fide request from any other party to lease an area including or in close proximity to
the Leased Premises ( "Leased Premises Area "), Tenant agrees to provide Landlord,
within sixty (60) days, the radio frequencies currently in operation or to be operated in
the future of each transmitter and receiver installed and operational on the Leased
Premises at the time of such request. Landlord may then have an independent, registered
professional engineer of Landlord's choosing perform the necessary interference studies
to determine if the new applicant's frequencies will cause harmful radio interference to
Tenant. Landlord shall require the new applicant to pay for such interference studies.
d) Inteir erence - Subsequent Occupants. Landlord agrees that it will not grant a
future lease in the Leased Premises Area to any party, except Governmental Units, if such
party's use is reasonably anticipated to interfere with Tenant's operation of its Antenna
Facilities. Landlord agrees further that any future lease of the Leased Premises Area will
prohibit a user from interfering with Tenant's Antenna Facilities, except Governmental
Units. Landlord agrees that it will require any subsequent occupants of the Leased
9
Premises Area, except Governmental Units, to provide Tenant these same assurances
against interference. Landlord shall have the obligation to eliminate any interference with
the operations of Tenant caused by such subsequent occupants. If such interference is not
eliminated, Tenant shall have the right to terminate this Lease or seek injunctive relief
against the interfering occupant, at Tenant's expense.
15. Assienment. This Lease, or rights thereunder, may not be sold, assigned,
or transferred at any time by Tenant except to Tenant's affiliates or subsidiaries. As to
other parties, this Lease may not be sold, assigned, or transferred without the written
consent of the Landlord, such consent not to be unreasonably withheld or delayed
Landlord hereby consents to the assignment by Tenant of its rights under this Lease as
collateral to any entity which provides financing for the purchase of the equipment to be
installed at the Leased Premises.
16. Condemnation. In the event the whole of the Leased Premises is taken by
eminent domain, this Lease shall terminate as of the date title to the Leased Premises
vests in the condemning authority. In the event a portion of the Leased Premises is taken
by eminent domain, either party shall have the right to terminate this Lease as of said date
of title transfer, by giving thirty (30) days written notice to the other party. In the event
of any taking under the power of eminent domain, Tenant shall not be entitled to any
portion of the reward paid for the taking and the Landlord shall receive full amount of
such award. Tenant hereby expressly waives any right or claim to any portion thereof.
Although all damages, whether awarded as compensation for diminution in value of the
leasehold or to the fee of the Leased Premises, shall belong to Landlord, Tenant shall
have the right to claim and recover from the condemning authority, but not from
Landlord, such compensation as may be separately awarded or recoverable by Tenant on
account of any and all damage to Tenant's business and any costs or expenses incurred by
Tenant in moving /removing its equipment, personal property, Antenna Facilities, and
leasehold improvements.
17. Disputes. Any claim, controversy or dispute arising out of this Lease not
resolved within ten (10) days following notice of the dispute, shall be submitted first and
promptly to mediation. Each party shall bear its own costs of mediation. If mediation
does not result in settlement within forty-five (45) days after the matter was submitted to
mediation, either party may file a claim in arbitration in accordance with the applicable
rules of the American Arbitration Association. The arbitration shall be conducted in the
county where the Leased Premises is located. The arbitration shall be non - binding
18. Enforcement and Attorneys' Fees. In the event that either party to this
Lease shall bring a claim in arbitration to enforce any rights hereunder, the prevailing
party shall be entitled to recover costs and reasonable attorneys' fees incurred as a result
of such claim.
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19. Notices. All notices hereunder must be in writing and shall be deemed
valid if sent by certified mail, return receipt requested, addressed as follows (or any other
address that the party to be notified may have designated to the sender by like notice):
If to Landlord, to:
City Manager
1010 South 1" Street
Hopkins, MN
If to Tenant, to: Real Estate Department
American Portable Telecom
P.O. Box 31793
Chicago, IL 60631 -0793
and
American Portable Telecom
1701 79 Street, Suite 19
Bloomington, MN 55425
Attn: Real Estate
20. Authority. Each of the individuals executing this Lease on behalf of the
Tenant or the Landlord represents to the other party that such individual is authorized to
do so by requisite action of the party to this Lease.
21. Bindine Effect. This Lease shall run with the Leased Premises. This
Lease shall extend to and bind the heirs, personal representatives, successors and assigns
of the parties thereto.
22. Complete Lease: Amendments. This Lease constitutes the entire
agreement and understanding of the parties and supersedes all offers, negotiations, and
other agreement of any kind There are no representations or understandings of any kind
not set forth herein. Any modification of or amendment to this Lease must be in writing
and executed by both parties.
23. Governing Law. This Lease shall be construed in accordance with the
laws of the State of Minnesota.
24. Severability. If any term of this Lease is found be void or invalid, such
invalidity shall not affect the remaining terms of this Lease, which shall continue in full
force and effect.
25. Miscellaneous.
a) This Agreement may be signed in counterparts by the parties hereto.
b) Landlord shall contemporaneously herewith execute and acknowledge and deliver
to Tenant for recording a Memorandum of this Agreement ( "Memorandum ") in the form
of Exhibit C.
c) Tenant represents that they have not been represented by a real estate broker or
other listing agent in this transaction for the purposes of commissions, fees or other
payments to such broker or any other leasing agent claiming to have represented APT. If
owner is represented by broker or listing agent, Landlord is responsible for all
commissions, fees or other payments to such agent.
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IN WITNESS WHEREOF, the parties hereto have set their hands and affixed heir
respective seals the day and year first above written:
LANDLORD City of Hopkins
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
, 1996, by and
, the Mayor and City Manager of City of
Hopkins, a Minnesota municipal corporation, on behalf of the municipal corporation.
TENANT APT Minneapolis, Incorporated, a Delaware
Corporation
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
BY
BY
Mike O'Rourke
Position
The foregoing instrument was acknowledged before me this
, 1996, by the
of APT Minneapolis.
Notary Public
day of
Notary Public
13
EXHIBIT "A"
TO
SITE AGREEMENT
LEGAL DESCRIPTION OF LANDLORD'S PROPERTY:
SITE ID #: AIP -012
SITE NAME: Hopkins
It is agreed by Landlord and TENANT that the precise legal description for the Landlord's Property will be
corrected, if necessary, and that the correct legal description may be placed on this Exhibit '',4" by
TENANT.
•
EXHIBIT "B"
TO
SITE AGREEMENT
SITE PLAN- ATTACHED
This document drafted by:
Pamela Carpenter
APT Minneapolis, Inc.
1701 East 79 Street, Suite 19
Bloomington, MN 55425
EXHIBIT "C"
TO
SITE AGREEMENT
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM evidences that a Site Agreement was made and is hereby
entered into by written Site Agreement effective the _ day of 199_, between
[ ) ( "Landlord ") whose address is as set forth below
and APT Minneapolis, Inc., a Delaware corporation ( "TENANT "), whose address is 8410 West
Bryn Mawr, Suite 1100, Chicago, IL 60631, the terms and conditions of which are
incorporated herein by reference.
Such Site Agreement provides, in part, that Landlord, for valuable consideration, leases
to TENANT a part of that certain property owned by Landlord which is described in Exhibit "A"
attached hereto and incorporated herein for a term of [ [ ([. 1) years
1 [ ([ 1) months commencing on 199 term is subject
to [ 1([ [) additional [ 1 ([ 1) year option terms.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed heir
respective seals the day and year first above written:
LANDLORD City of Hopkins
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
By
Steven C. Mielke, City Manager
The foregoing instrument was acknowledged before me this day of
, 1996, by and
, the Mayor and City Manager of City of
Hopkins, a Minnesota municipal corporation, on behalf of the municipal corporation.
Position
The foregoing instrument was acknowledged before me this
, 1996, by the
of APT Minneapolis.
Notary Public
TENANT APT Minneapolis, Incorporated, a Delaware
Corporation
BY
Mike O'Rourke
day of
Notary Public