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CR 10-068 - Moline Water TowerG'1iY OE 4* HOPKINS July.1, 2010 Council Report 2010-068 Approve Site Lease Agreement between City of Hopkins and Clear Wireless LLC for the installation ofcommunications antenna facilities at.the Moline Water Tower ProDosed Action. Staff recommends adoption of. the :following motion: Move that Council authorize the Mayor and City Manager to sign the site lease agreement between the City of Hopkins and .Clear Wireless.. to allow the installation of communication: antennas and facilities.at the Moline Water Tower site. Overview. This new lease is similar to leases executed in 2006 and 2.009 with New Cingular Wireless and: Sprint Spectrum for antennas on. the Blake WaterTank. The rental rate forthis proposed site lease is $1,500/month with three renewgble.5=year terms and a`5%:rental rate increase each year. The Other lease.termS and conditions are.the same:as.preViou$ly approvedlease. agreements and the City Attorney has reviewed and .approved the lease.. Clear Wireless is currently building a network of antennas in the Twin Cities area in order to offer a wireless internet service. - Primary Issues to Consider: • Description of proposed facilities, terms and schedule Supporting Information • Proposed. Lease Agreement • Construction plans Steven J. Stadler Public Works Director SITE NAME Hopkins —Excelsior Blvd & I " Ave. S. SITE NUMBER: MN-MSP0220 LEASE AGREEMENT THIS LEASE AGREEMENT ("Agreement"), dated as of the latter of the signature dates below (the "Effective Date"), is entered into by the City of Hopkins, a Minnesota municipal corporation, having a mailing address of 1010 15` Street South , Hopkins, Minnesota 55343 (hereinafter referred to as "Landlord") and Clear Wireless LLC, a Nevada limited liability company (hereinafter referred to as "Tenant"). BACKGROUND Landlord owns or controls that certain plot, parcel or tract of land, together with all rights and privileges arising in connection therewith, located at, in the County of Hennepin, State of Minnesota (collectively, the "Property"). Tenant desires to use a portion of the Property in connection with its federally licensed communications business. Landlord desires to grant to Tenant the right to use a portion of the Property in accordance with this Agreement. The parties agree as follows: 1. LEASE OF PREMISES. Landlord leases to Tenant a certain portion of the Property consisting of (a) a ground area space of approximately forty-nine (49) square feet (seven (7) feet x seven (7) feet) including the air space above such ground space and (b) space on the structure ("Tower") together with such easements as are necessary for the antennas and initial installation as described on attached Exhibit 1 (collectively, the "Premises"). 2. PERMITTED USE. (a) Tenant may use the Premises only for the purpose of installing, maintaining and operating a Landlord -approved communications antenna facility, equipment, cabinets and uses incident thereto for zroviding radio and wireless telecommi>,nication services which Tenant is legally authorized to provide to the public. This se shall be non-exclusive (excepting the Premises) and Landlord specifically reserves the right to allow the Property to be used by other parties and to make additions, deletions or modifications to its own facilities on the Property. Tenant's communications antenna facility shall consist of antennas, cables and appurtenances connected to an accessory building or cabinet located on the Premises (collectively, the "Communication Facility"). Tenant shall have the right to determine the location of the Communication Facility, subject to the Landlord's approval. Tenant shall comply with all applicable ordinances, statutes and regulations of local, state and federal governmental agencies. Tenant agrees to reimburse Landlord for the cost of a consultant engineer, of Landlords' choosing, to review Tenant construction drawings/specifications and `construction observation and legal counsel review of all documents at costs not to exceed $6,000 for engineering review and $1,000 for legal review. The approval of Landlord shall not be unreasonably withheld, delayed or conditioned. Tenant's initial installation shall be in accordance with its submitted application attached as Exhibit 2. Tenant shall also have the right to test, survey and review title on the Property; Tenant further has the right but not the obligation to add, modify.and/or replace equipment in order to be in compliance with any current or future federal, state or local mandated application, including, but not limited to, emergency 911 communication services, at no additional cost to Tenant or Landlord (collectively, the "Permitted Use"). Landlord and Tenant agree that any portion of the Communication Facility that may be conceptually described on Exhibit 1 will not be deemed to limit Tenant's Permitted Use. If Exhibit 1 includes drawings of the initial installation of the Communication Facility, Landlord's execution of this Agreement will signify Landlord's approval of Exhibit 1. Tenant has the right to install and operate transmission cables from the equipment shelter or cabinet to the antennas, electric lines from the main feed to the equipment shelter or cabinet and communication lines from the main entry point to the equipment shelter or cabinet, and to make property improvements, alterations, upgrades or additions appropriate for Tenant's use ("Tenant Changes"), subject to approval by Landlord, excepting like -kind replacement, which will shall not be unreasonably withheld. Tenant Changes include the right to construct a fence around the Premises and undertake any other appropriate means to secure the Premises; provided that Tenant must provide keys, security codes, or other necessary items tb Landlord to allow Landlord, its agents, or other -:authorized users of the Property to access the Property. Tenant agrees to comply with all applicable governmental laws, ;rles, statutes and regulations, relating to its use of the Comnumication Facility on the Property. Tenant has the right to modify, supplement, replace, upgrade, expand the equipment, increase the number of antennas or relocate the Communication Facility within the Premises at any time during the term of this Agreement; provided that if Tenant seeks to increase the number of antennas, it must first pay for the reasonable cost of an evaluation carried out by a qualified SITE NAME Hopkins — Excelsior Blvd R I Iib Ave. S. SITE NUMBER: NIN-NISP0220 professional, retained by Landlord clemonstrating that (i) each additional antenna will not interfere with existing antennas or with proposed antennas and that (ii) the Tower can structurally support the additional antennas. The cost for antenna ,._evaluation shall not exceed $500.00 and the cost of structural evaluation shall not exceed $5,000.00. The evaluation cost ( dust be paid by the Tenant within thirty (30) days after receiving written notice of the cost. Landlord must consent to installation of additional antennas, such consent will not be' unreasonably witllheld, delayed or conditioned. Rent for the additional antenna(s) will be proportionally adjusted based on_ the original number of antennas and original rent. Tenant will be allowed to make such alterations to the Property in order to accomplish Tenant's Changes or to insure that Tenant's Communication Facility complies with all applicable federal, state or local laws, rules or regulations. Prior to the initial installation of Tenant's Changes and any subsequent Tenant Changes, excepting like -kind replacement, Tenant will supply the Landlord with plans and specifications ("Plans") to be reviewed and approved by the Landlord prior to commencement of Tenant's Changes. Landlord's approval will not be unreasonably withheld, conditioned or delayed (and in no event delayed beyond fourteen (14) days). After approval, the Plans will be considered incorporated in this Agreement as Exhibit 1. If the Landlord disapproves the Plans then the Tenant will provide the Landlord with revised Plans, such revisions to be within Tenant's reasonable discretion. In the event Landlord disapproves of the Plans upon a second (2nd) submission, Tenant may terminate this Agreement. Landlord will not knowingly permit or suffer any person to copy or utilize the Plans for any purpose other than as provided in this Agreement and will return the Plans to Tenant promptly upon request. in the event Tenant desires to modify or upgrade the Communication Facility, and Tenant requires an additional portion of the Property (the "Additional Premises") for such modification or upgrade, Landlord agrees to lease to Tenant the Additional Premises, upon the same terms and conditions set forth herein, except that the Rent shall increase, in conjunction with the lease of the Additional Premises by a reasonable amount consistent with rental rates then charged for comparable portions of real property being in the same area. Landlord's duty to lease the Additional Premises to Tenant is subject to (1) Tenant obtaining all necessary approvals for the additional equipment as required in Section 5, below, including (but not limited to) structural integrity and interference requirements in Section 5(b), and (2) the availability of additional space on the tower. In no circumstance shall the Landlord be obligated to remove its own communications devices or those of other tenants, or build any additional structures to comply with the provisions of this section. Landlord agrees to take such actions and enter into and deliver to Tenant such documents as Tenant reasonably is requests in order to effect and memorialize the lease of the Additional Premises to Tenant. (b) Governmental Users. A governmental unit may be allowed to place antennas or other connliunications 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 Agreement with no further liability, other than for removal pursuant to Paragraph 13 of this Agreement. A governmental unit is to include Public Safety agencies, including law enforcement, fire and ambulance services. (c) Operation. Tenant shall have the right, at its sole cost and expense; to operate and maintain the Communication Facility on the Premises in accordance with all applicable Federal Communication Commission ("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 clone by Tenant, its employees or agents to the Premises or other Landlord property, including the Tower, during installation or during operations, shall be repaired at Tenant's expense within thirty (30) clays after notification of damage. The Comnnulication Facility shall remain the exclusive property of the Tenant, unless otherwise provided in this Agreement. . (d) Drawings. Unless duplicative of previous specifications or drawings submitted to Landlord, Tenant shall provide Landlord with as-bllilt drawings of the equipment and improvements Installed oil the Premises, which show the actual location of its Communication Facility. Said drawings shall be accompanied by a complete and detailed inventory or all equipment, personal property and the location of the Coil llunication Facility on the Premises. (e) No Interference, Tenant shall, at its own expense, maintain any equipment on or attached to the 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 working use of the water storage facilities thereon or to be placed thereon by Landlord. TERM. SITE NAME Hopkins — Excelsior Blvd K I" Ave S SITE NUMBER. MN-MSP020 (a) The initial lease term will be five (5) years ("Initial Term"), commencing on the Effective Date. The Initial Term will terminate on the fifth (5t1i) annual anniversary of the Effective Date. (b) This Agreement will automatically renew for three (3) additional five (5) year terms) (each five (5) year "term shall be defined as the "Extension Term"), upon the same terms and conditions unless the Tenant notifies the Landlord in writing of Tenant's intention not to renew this Agreement at least sixty (60) days prior to the expiration of the existing Term. (c) The Initial Term and the Extension Term are collectively referred to as the Term ("Term"). 4. RENT. (a) Commencing on the first clay of the month following the execution of this Lease Agreement (the "Rent Commencement Date"), and on or before the fifth clay of every month thereafter during the Terni, Tenant will pay the Landlord a monthly rental payment of One Thousand Five Hundred Dollars ($1,500.00)("Rent"), at the address set forth above. At no time shall the monthly Rent be less than $1,500.00. In partial months occurring after the Rent Commencement Date, Rent will be prorated. The initial Rent payment will be forwarded by Tenant to Landlord within thirty (30) days after the Rent Commencement Date. (b) In year two (2) of the Initial Term, and each year thereafter, including throughout any Extension Terms exercised, the monthly Rent will increase by Five percent (5 %) over the Rent paid during the previous year. (c) All other charges payable under this Agreement shall be billed by Landlord within eighteen (18) months from the end of the calendar year in which the charges were incurred; any charges beyond such period shall not be billed by Landlord, and shall not be payable by Tenant. The provisions of the foregoing sentence shall survive the termination or expiration of this Agreement. 5. APPROVALS. (a) Landlord agrees that Tenant's ability to use the Premises is contingent upon the suitability of the Premises for Tenant's Permitted Use and Tenant's ability to obtain and maintain all governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate by Tenant for its use of the Premises, including without jmitation applications for zoning variances, zoning ordinances, amendments, special use permits, and construction permits (collectively, the "Government Approvals"). This shall include the engineering study on the Tower as specified in Subparagraph 2(a) 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 Premises with respect to the Tenant's proposed use thereof. Landlord authorizes Tenant to prepare, execute and file all required applications to obtain Government Approvals for Tenant's Permitted Use under this Agreement and agrees to reasonably assist Tenant with such applications and with obtaining and maintaining the Government Approvals. In addition, Tenant shall have the right to initiate the ordering and/or scheduling of necessary utilities. (b) 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 $500.00; and (ii) an engineering study showing that the Tower is able to support the Tenant's Communication Facility as defined in Subparagraph 2(a), without prejudice to the Landlord's use of the Tower, such cost not to exceed $5,000.00. If the study finds that there is a potential for interference that cannot be reasonably remedied or that the Tower is unable to safely bear the weight of the equipment, this Agreement shall terminate immediately and Landlord shall refund the initial Rent payment to Tenant. (c) _ In the event that any -application necessary under Subparagraph 5(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 will be unable to use the Premises for its intended purposes, Tenant shall have the right to terminate this Agreement. 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. Upon such termination, this Agreement.shall become null and void and the arties shall have no further obligations or liability to each other except that set forth herein. (d) Tenant has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company of its choice and to have the Property surveyed by a surveyor of Tenant's choice. hn the event Tenant SITE NAIL- Hopkins — Excelsior Blvd C 1 V` Ave. S. SITE NUMBER. \7N \1SP0230 determines, in its sole discretion, due to the title report results or survey results, that the condition of the Premises is unsatisfactory, Tenant will have the right to terminate this Agreement upon notice to Landlord. (e) Tenant may also perform and obtain, at Tenant's sole cost and expense, 'soil borings, percolation tests, I __Pgineering procedures. environmental investigation or other tests or reports on, over, and under the Property, necessary to determine if the Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system, design, operations or Government Approvals. Tenant shall repair and restore any damage caused by inspection and testing. 6. TERMINATION. This Agreement may be terminated, without penalty or further liability, as follows: (a) by either party on thirty (30) clays prior written notice, if the other party remains in default under Paragraph 15 Default and Right to Cure of this Agreement after the applicable cure periods; (b) by Tenant upon written notice to Landlord, if Tenant is unable to obtain, or maintain, any required approval(s) or the issuance of a license or permit by any agency, board, Court or other governmental authority necessary for the Construction or operation of the Communication Facility as now or hereafter intended by Tenant; or if Tenant determines in its sole discretion that the cost of obtaining or retaining the same is commercially unreasonable; (c) by Tenant upon written notice to Landlord for any reason, at any time prior to commencement of construction by Tenant; or (d) by Tenant upon sixty (60) clays prior written notice to Landlord for any reason, so long as Tenant pays Landlord a termination fee equal to six (6) months Rent, at the then current rate, provided, however, that no such termination fee will be payable on account of the termination of this Agreement by Tenant under any one or more of Paragraphs 5(b) Approvals, 6(a) Termination, 6(b) Termination, 6(c) Termination, 8 Interference, 1 l(d) Environmental, 18 Severability, 19 Conclemnation or 20 Casualty of this Agreement. (f) by Landlord, with a minimum o1' six (6) months prior written notice to Tenant, if the City Council decides, for any reason, to redevelop the Premises and/or discontinue use of the Tower on the Property for all purposes; (g) by Landlord if an independent structural engineer cletermines that the .Tower is structurally unsound, including, but not limited to, Consideration of age of the Tower, clamage to or destruction of all or part of the Tower on the premises from any source, or factors relating to condition of the Premises; 7. INSURANCE. (a) Tenant will carry during the Term, at its own cost and expense, the following insurance: (i) "All Risk" property' insurance for its property's replacement cost; (ii) commercial general liability insurance with a minimum limit of liability of $2,000,000 combined single limit for bodily injury or death/property damage arising out of any one occurrence; and (iii) Workers' Compensation Insurance as required by law. The coverage afforded by Tenant's commercial general liability insurance shall apply to Landlord as an additional insured, but only with respect to Landlord's liability arising out of its interest in the Property. Tenant may satisfy this requirement by obtaining the appropriate endorsement to any master policy of liability insurance Tenant may maintain. S. INTERFERENCE. (a) Where there are existing raclio frequency user(s). on the Property, the Landlord will provide Tenant with a list of all existing radio frequency User(s) on the Property to allow Tenant to evaluate the potential for interference. Tenant warrants that its use of the Premises will not interfere with existing radio frequency user(s) on the Property so disclosed by Landlord, as long as the existing radio frequency User(s) operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations. (b) Landlord will not grant, after the date of this Agreement, a lease, license or any other right to any third party for the use of the Property, if Such use would likely adversely affect or interfere with the Communication Facility, the operations of Tenant or the rights of Tenant Under this Agreement. Landlord will notify Tenant in writing prior to granting any third party the right to install and operate communications equipment on the Property. (c) Landlord will not use, nor will Landlord permit its employees, tenants, licensees, invitees or agents to use, any portion of the Property in any way which interferes with the Communication Facility, the operations of Tenant or the / tights of Tenant Under this Agreement. Landlord will cause such interference to cease within twenty-four (24),hours after - ,receipt of notice of interference from Tenant. In the event any such interference does not cease within the aforementioned cure period then the parties acknowledge that Tenant will suffer irreparable injury, and therefore, Tenant will have the right, in addition to any other rights that it may have at law or in equity, for Landlord's breach of this Agreement, to elect to enjoin such interference or to terminate this Agreement upon notice to Landlord. sITE NAME Hopkins - Excelsior Blvd R I I" Ave S SITE NUMBER bIN-MSP0230 9. INDEMNIFICATION. Except with respect to Environmental matter dealt with in Paragraph 11: (a) Tenant agrees to indemnify, defend -and hold Landlord harmless from and against any and all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs but excluding real property or personal property taxes) arising directly from the installation, use, maintenance, repair or removal of the Communication Facility or Tenant's breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Landlord, its employees, agents or independent contractors. (b) Landlord agrees to indemnify, defend and hold Tenant harmless from and against any and all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs but excluding real property or personal property taxes) arising directly from the actions or failure to act of Landlord or its employees or agents, or Landlord's breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Tenant, its employees, agents or independent contractors. (c) NotNvithstanding anything to the contrary In this Agreement, Tenant and Landlord each waives any claims that each may have against the other With respect to consequential, incidental or special damages. 10. WARRANTIES. (a) Tenant and Landlord each acknowledge and represent that it is duly organized, validly existing and in good standing and has the right, power and authority to enter into this Agreement and bind itself hereto through the party set forth as signatory for the party below. (b) Landlord represents and warrants that: (i) Landlord solely owns the Property as a legal lot in fee simple, or controls the Property by lease or license and solely owns the structure; (ii) the Property is not encumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of record, which would adversely affect Tenant's Permitted Use and enjoyment of the Premises under this Agreement; (iii) as long as Tenant is not in default then Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of the Premises; (iv) Landlord's 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 the Landlord; and (v) if the Property is := l' becomes enCUmbered by a deed to secure a clebt, mortgage or other security interest, Landlord will use best efforts to provide promptly to Tenant a mutually ioreeable Subordination, Non -Disturbance and Attornment Agreement. 11. ENVIRONMENTAL. (a) Landlord represents and warrants that, to the best of their knowledge, the Property is free of hazardous Substances as of the date of this Agreement, and, to the best of Landlord's knowledge, the Property has never been subject to any contamination or hazardous conditions resulting in any environmental investigation, inquiry or remediation and will indemnity Tenant with respect to any environmental condition existing prior to the Rent Commencement Date. Landlord and Tenant agree that each will be responsible for compliance with any and all environmental and industrial hygiene laws, including any regulations, guiclelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene condition or other matters as may now or at any time hereafter be In effect, that are now or were related to that party's activity conducted in or on the Property. (b) Landlord and Tenant agree to hold harmless and indemnify the other from, and to assume all duties, responsibilities and liabilities at the sole cost and expense of the indemnifying patty for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and .for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is related to (i) the indemnifying party's failure to comply with any environmental or industrial hygiene law_. including without limitation any regulations, Guidelines, standards or policies of any governmental authorities regUlating or imposing standards of liability or standards of conduct with regard to any environmental or industrial .hygiene conditions or matters as may now or hereafter be in effect, or (11) any environmental or industrial hygiene conditions that arise out of or are in any way related to and activities conducted by the party thereon. (C) The indemnifications of this Paragraph i 1 Environmental specifically include reasonable costs, expenses and fees incurred in connection with any investigation of Property conditions or any clean -Up, remediation, removal or restoration work required by any governmental authority. The provisions of this Paragraph 1 1 Environmental will survive c expiration or termination of this Agreement. (d) In the event Tenant becomes aware of any hazardous materials on the Property, or any environmental or industrial hygiene condition or matter relating to the Property that, in Tenant's reasonable determination, renders the condition of the Premises or Property unsuitable for Tenant's use, or if Tenant believes that the leasing or continued SITE NAME Hopkins — Excelsior Blvd & I In' Ave. S SITE NUMBER_ MN-NISP0220 leasing of the Premises would expose Tenant to undue risks of government action, intervention or third -party liability, Tenant will have the right, in addition to any other rights it may have at law or in equity, to terminate the Agl•eenlent upon ,notice to Landlord. 12. ACCESS. At all times tlli'OUbhollt the Teim of this Agreement, Tenant and its employees, agents, and subcontractors, will have pedestrian and vehicular access to and over the Property, from an open and improved public road to the Premises, for the installation, maintenance and operation of the Communication Facility and any Utilities serving the Premises only with the approval of Landlord, which shall not be unreasonably withheld. Tenant shall request access to the Leased Premises from the Hopkins Public Works Department during normal working hours by contacting the Utility Superintendant at 952-939-1382. Otherwise, Tenant shall request access frons the City of Hopkins Police Dispatch Center by calling Telephone # 952-938-8885. Tenant shall reimburse Landlord for reasonable expenses, not to exceed $45.00 per hour, which are directly related to access provided Tenant at times other than normal working hours of Landlord. 13. REMOVAL/RESTORATION. (a) All portions of the COmInLill lcatlon Facility brought onto the Property by Tenant will be and remain Tenant's personal property and, at Tenant's option, may be removed by Tenant at any time during the Term. Landlord covenants and agrees that no part of the Conhilhunication Facility constructed, erected or placed on the Premises by Tenant will become, or be considered as being affixed to or a part of, the Property, it being the specific intention of the Landlord that all improvements of every kind and, nature Constructecl, erected or placed by Tenant on the Premises will be and remain the property of the Tenant and may be removed by Tenant at any time during the Term. (b) in the event that this I. -case Agreement is terminated or not renewed, Tenant shall remove its CO1111nLIllicatlon Facility, and related equipment frons the Premises, repair the site and restore the surface of the Tower to its original condition, normal weal', tear alld Casualty excepted, within ninety (90) clays from termination or expiration date. The provisions of this section shall survive the termination or expiration of this Agreement. 14. MAINTENANCE/UTILITIES. ( ) (a) Tenant will keep and maintain the Premises in good condition, reasonable wear and tear and damage from `the elements excepted. Landlord will maintain and repair the Property and access thereto, in good and tenantable condition, subject to reasonable wear and tear and damage from the elements. (b) All modifications to the Premises and all improvements made for Tenant's expense and such i ill prove ill ents, 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 Premises and secured by Tenant. If any part of Tenant's Conlnlunication Facility is mounted on the Tower, such equipment shall, at all times, be painted (with such paint to be approved as to raclio frequency (RF) permeability by Tenant) at Tenant's expense, the same color as the Tower. (c) Tenant shall separately meter charges (or the consumption of electricity and other Utilities associated with its use of the Premises and shall promptly pay all costs associated therewith. Landlord will not be responsible for interference with, interruption of or failure, beyond the reasonable control of Landlord, of such services to be furnished or supplied by Landlord. 15. DEFAULT AND RIGHT TO CURE. (a) The following will be cleemed a default by Tenant and a breach of this Agreement: (1) non-payment of Rent if such Rent remains unpaid for more than thirty (30) business days after receipt of written notice from Landlord of such failure to pay; or (ii) Tenant's failure to perform any other term or condition under this Agreement within forty-five (45) days after receipt of written notice from Landlord specifying the failure. No such failure, however, will be deemed to exist if Tenant has commenced to Cure such default within such period and provided that such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of Tenant. If Tenant remains in defaUlt beyond any applicable cure period, Landlord will have the right to exercise any and all rights and remedies available to it under law and equity. (b) The following will be deemed a default by Landlord and a breach of this Agreement: Landlord's failure perform any term, condition or breach of any warranty or covenant under this Agreement within forty-five (45) clays after receipt of written notice frons Tenant specifying the failure. No such failure, however, will be deemed to exist if Landlord has commenced to cure the default Within such period'and provided Such efforts are prosecuted to completion SITE NAME Hopkins — Excelsior Blvd & I I" Ave. S SITE NUMBER. MN-MSP0220 with reasonable diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of Landlord: If Landlord remains in default beyond an), applicable cure period, Tenant will have the right to exercise any ,and all rights available to it under law and equity, including the right to cure Landlord's default and to deduct the costs of Bch cure from any monies due to Landlord from Tenant. 16. ASSIGNMENT/SUBLEASE. Tenant will have the right to assign, sell or transfer its interest under this Agreement without the approval or consent of Landlord, to any lender in connection with a financing agreement, to Tenant's parent or member company or any affiliate or subsidiary of, or partner in, Tenant or its parent or member company or to any entity which acquires all or substantially all of the Tenant's assets in the market defined by the Federal COmIIILInICations Commission in which the Property is located by reason of a merger, acquisition, or other business reorganization. Upon notification to Landlord of such assignment, transfer or sale, Tenant will be relieved of all future performance, liabilities and obligations under this Agreement. Tenant may not otherwise assign or sublease this Agreement without Landlord's consent. Landlord's consent not to be unreasonably withheld, conditioned or delayed. 17. NOTICES. All notices, requests, demands and communications hereunder will be given by first class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the parties as follows: If to Tenant: Clear Wireless LLC Attn: Site Leasing 4400 Carillon Point Kirkland, WA 98033 Telephone: 425-216-7600 Fax: 425-216-7900 Email: Siteleasin��c clear�wire.com with a copy to: Clear Wireless LLC Attention: Leal Department 4400 Carillon Point Kirkland, WA 98033 Telephone: 425-216-7600 Fax: =425-216-7900 If to Landlord: City of Hopkins. 1010 1" Street South Hopkins, MN 55343 Phone No.:952-935-8474 with a copy to: Hopkins City Attorney 101 1 First Street South #400 Hopkins, MN 55343 Either party hereto may change the place for the giving of notice to it by thirty (30) days prior written notice to the other as provided herein. 18. SEVERABILITY. Ir any term or condition of this Agreement is found unenforceable, the remaining terms and conditions will remain binding upon the parties as though said unenforceable provision were not contained herein. However, if the invalid, illegal or unenforceable provision materially affects this Agreement then the Agreement may be terminated by either party on ten (10) business days prior written notice to the other party hereto. ( CONDEMNATION. In the event Landlord receives notification of any condemnation proceedings affecting the —Property, Landlord will provide notice of the proceeding to Tenant within forty-eight (48) hours. If a condemning authority takes all of the Property, or a portion sufficient, in Tenant's sole determination, to render the Premises unsuitable for Tenant, this Agreement will terminate as of the date the title vests in the condemning authority. The parties will each SITE NAME Hopkins— Excelsior Blvd R I I" Ave. S SITE NUMBER. NIN MSP02]0 be entitled to pursue their own separate aNvarcls in the condemnation proceeds, which for Tenant will include, where applicable, the value oi' its Conui1unication Facility, moving expenses, prepaid Rent, and business dislocation expenses, � ..0rovided that anv award to Tenant will not diminish Landlord's recovery. Tenant will be entitled to reimbursement for ay prepaid Rent on a prorata basis. 20. CASUALTY. Landlord will provide notice to Tenant of any casualty affecting the Property within forty-eight (48) hours of the casualty. If any part of the Communication Facility or Property is damaged by fire or other casualty so as to render the Premises unsuitable, in Tenant's sole determination, then Tenant may terminate this Agreement by providing written notice to the Landlord, which termination will be effective as of the date of such damage or destruction. Upon such termination, Tenant will be entitled to collect all insurance proceeds payable to Tenanton account thereof and to be reimbursed for any prepaid Rent on a prorata basis. if notice of termination is given, or if Landlord or Tenant undertake to rebuild the Communications Facility, Landlord agrees to use its reasonable efforts to permit Tenant to place temporary transmission and reception facilities on the Property at no additional Rent until such time as Tenant is able to secure a replacement transmission location or the reconstruction of the Communication Facility is completed. If Tenant chooses not to terminate this Agreement, Rent shall be reduced or abated in proportion to the actual reduction or abatement of use of the Premises, unless the temporary, transmission and reception facilities allow Tenant to maintain its Permitted Use, 21. WAIVER OF LANDLORD'S LIENS. Landlord waives any and all lien rights it may have, statutory or otherwise, concerning the Communication Facility or any portion thereof. The Communication Facility shall be deemed personal property for purposes of this Agreement, regardless of whether any portion is deemed real or personal property under applicable law, and Landlord consents to Tenant's right to remove all or any portion of the Communication Facility from time to time in Tenant's sole discretion and without Landlord's consent. 22. TAXES. (a) Tenant shall be solely responsible for and shall timely pay all personal property taxes levied and assessed bainst it or its personal property. Tenant shall reimburse the Landlord for Tenant's proportionate share of any increase in "the real estate taxes directly attributable to the Communication Facility, upon timely receipt of a copy of the tax bill detailing same and request for reimbursement from the Landlord. For purposes herein, Tenant's proportionate share shall be determined based upon the square footage of the Premises (excluding therefrom any unassessed square footage used by Tenant, e.g., the rooftop) relative to Landlord's entire parcel of real estate (using, in the case of building space, the net usable square footage of the building, and in the case of leased land, the unimproved portion of Landlord's real estate (including parking areas)). At the request of either party, the other shall provide evidence of payment of taxes: (b) Tenant shall have the right to contest all taxes, assessments, charges and impositions assessed against its personal property or improvements, and Landlord agrees to join in such contest, if required by law, and to permit the Tenant to proceed with the contest in Landlord's name, provided that the expense of the contest is borne by Tenant. If the Landlord initiates an action to contest taxes 01• other items, Tenant may join in such action provided that Tenant pays its own expenses of so participating. Landlord shall, Within fourteen (14) clays .of receipt of notice of any increase in taxes, assessments or other charges, send a copy of such notice by certified mail, return receipt requested, to Tenant. if Landlord fails to give Tenant such notice as set forth above, Landlord will be responsible for payment of any increases and Tenant shall have the option to pay the same and deduct such payment from Rent Orally other sums next due. 23. SALE OF PROPERTY. If Landlord, at any time during the Term of this Agreement, decides to sell, subdivide or rezone any of the Premises, a.11 or any part of the Property or Surrounding Property, to a purchaser other than Tenant, Landlord shall promptly notify Tenant in writing, and such sale, subdivision or rezoning shall be subject to this Agreement and Tenant's rights hereuncler. Landlord agrees not to sell, lease or use any areas of the Property or Surrounding Property for the installation, operation or maintenance of other wireless comhlunications facilities if such installation, operation or maintenance would interfere with Tenant's Permitted Use or communications equipment as determined by radio propagation tests performed by 3'`{ party engineering firm, any such testing to be at the expense of Landlord or Landlord's prospective pcirchaser, and not Tenant. If the radio frequency propagation tests demonstrate `evels of interference reasonably unacceptable to Tenant, Tenant may terminate this Lease upon notice to Landlord at no cost or further liability to Tenant, except as otherwise set forth herein. In the event the Property is transferred, the new landlord shall have a cluty at the time of such transfer to provide Tenant with a completed IRS Form W-9, or its SITE N.ANIE Hopkins — Excelsior Blvd E I V` Ave S SITE NUMBER KIN-NISp020 equivalent, and other related paper wort: to effect a transfer in Rent to the new landlord. The provisions of this Paragraph 23 shall in no way limit or impair the obligations of Landlord under Paragraph 8 above. 4. MISCELLANEOUS. (a) Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done in writing and signed by an authorized went of the Landlord and an authorized agent of the Tenant. No provision may be waived except in a writing sighed by both parties. (b) Memorandum/Short Form Lease. Either party will, at any time upon thirty (30) business days prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum or Short Form of Lease. Either party may record this Memorandum or Short Form of Lease at any time, in its absolute discretion. (c) Bind and Benefit. The terms and conditions contained in this Agreement will run with the Property and bind and inure to the benefit of the parties, their respective heirs, executors, administrators, successors and assigns. (d) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof, constitute the entire agreement of' the parties hereto and will supersede all prior offers, negotiations and agreements with respect to the subject matter of this Agreement. (e) Governing Law. This Agreement will be governed by the laws of the state in which the Premises are located, without regard to conflicts of law. (f) Interpretation: Unless otherwise specified, the following rules of construction and interpretation apply: (i) captions are for convenience and reference only and in no way define Or limit the construction of the terms and conditions hereof, (ii) use of the term "including" will be interpreted to mean "including but not limited to"; (iii) whenever a party's consent is required under this Agreement, except as otherwise stated in the Agreement or as same may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv) exhibits are an integral part of the Agreement and are incorporated by reference into this Agreement; (v) use of the terms "termination" or "expiration" are interchangeable; and (vi) reference to a default will take into consideration any applicable notice, grace and cure periods. (g) Estoppel. Either party will, at any time upon thirty (30) business days prior written notice from the other, ,.execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Agreement is unmodified and full force and effect (or, if modified, stating the nature of such modification and certifying this Agreement, as so `modified, is in full force and effect) and the date to \-vhich the Rent and other charges are paid in advance, if any, and (ii) acknowledging that there are not, to such party's knowledge, any uncured defaults on the part of the other party hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises. The requested party's failure to deliver such a statement within such time will be conclusively relied upon by the requesting party that (i) this Agreement is in full force and effect, without modification except as may be properly represented by the requesting party, (ii) there are no uncured defaults in either party's performance, and (iii) no more than one month's Rent has been paid in advance. (h) W-9. Landlord agrees to provide Tenant with a completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may be reasonably requested by Tenant. (i) No Electronic Signatures/No Option. The submission of this Agreement to any party for examination or consideration does not constitute an offer, reservation of or option for the Premises based on the terms set forth herein. This Agreement will become effective as a binding Agreement only upon the handwritten legal execution, acknowledgment and delivery hereof by Landlord and Tenant. 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