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CR 96-209 Approve Site Lease Agreement - Moline Tower• December 12, 1996 Proposed Action. Overview. Primary Issues to Consider. Supporting Information o Analysis of Issues o Antenna installation plans o PCS general information o Lease Agreement o R ental Fee Sury APPROVE SITE LEASE AGREEMENT MOLINE TOWER ANTENNA Council Report 96 -209 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. This request was brought before City Council on December 3, 1996. Following some discussion on the length of the lease and the rental fee, Council decided to table the request until the December 17 Council meeting. There was no request to staff for additional information. The originally proposed lease agreement had a 5 -year initial term with the tenant having the right to extend for three 5 -year renewal terms. Staff has revised the agreement to include only one 5 -year renewal term. Staff has also attached the results of a July' 96 survey of area antenna rental fees. 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. o Zoning Ordinance requirements/limitations o Lease Conditions o Maintenance and access o Liability Steven J. Stadler, Public Works Director • • • COUNCIL REPORT 96 -209 PAGE 2 Analysis of Issues o 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. o 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 one additional 5 year renewal period. 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. o 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. 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. o Liability The tenant must show evidence of general liability insurance of not less than $1,000,000 naming the City as additional insured. • • • 7 rm m m 00 \ x X Y> C �� 0 \ Z Z Z m 0 0 z \ o 0 > o \ z 71 -a P1 0 \ -I -I C m o Z \ P1 o n m v \ \ ANTENNAS 81 & 82 FACING 120' COAX CABLE EAST ELEVATION ANTENNA A2 FACING 0' EXISTING 18' DIA. RAILING SCALE: 1° a IG' -o' I ANTENNA CONCRETE APRON • FREDRIKSON & BYRON, P.A. Attorneys At Law Adrian E Herbst Theresa M. Harris PCS IS COMING TO TOWN 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 • FREDRIKSON & BYRON, P.A. Attorneys At Law 542297 - May 29, 1996 - Page 3 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 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 -kind 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, 19% - Page 5 • 2. Rent SITE LEASE AGREEMENT Site Number: A IP-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 Contingency. 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 one (1) additional five (5) year renewal period ( "Renewal Term ") commencing on January 1 following the expiration date of the Initial Term or of any subsequent Renewal Term. 2 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 3 • 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. 4 • 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. 5 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 6 • 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. 7 (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 8 • 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 rice or interference with Tenant' -s- operation • in • ■ •r. caused by the wilful 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) Interference - 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. Assignment. 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. I0 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 79t 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. Binding 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. 11 24. Severabilitv. 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. 12 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) 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 BY Mike O'Rourke Position The foregoing instrument was acknowledged before me this day of , 1996, by the of APT Minneapolis. Notary Public Notary Public 13 EXIIIBIT "A" TO SITE AGREEMENT LEGAL DESCRIPTION OF LANDLORD'S PROPERTY: 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 'A" by TENANT. SITE ID #: AIP -012 SITE NAME: Hopkins EXHIBIT "B" TO SITE AGREEMENT SITE PLAN - ATTACHED This document drafted by: Pamela Carpenter APT Minneapolis, Inc. 1701 East 79th 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 off ] (1_1) years ( 1 ([ _]) months commencing on , 199, which term is subject to 1 ] ([ ]) additional ( 1 (( ]) year option terms. This document drafted by: Pamela Carpenter 1701 East 79th Street, Suite 19 Bloomington, A4N 55425 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 , 1996, between the City of Hopkins ( "Landlord" who MinroliK, c., 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. All permits from all local or federal land use jurisdictions for the intended use. - • •... • Such Site Agreement provides, in part, that Landlord, for valuable consideration leases to TENANT - y an ord which is described in Exhibit "A" attached hereto and incorporated herein for a term of ( ) years ( ) months commencing on , 1996, which term is subject to three (3) additional five (5) year option terms. . • i. - • ••• -• .